These appeals from two separate judgments of the learned Sessions Judge, Khairpur in Sessions Cases Nos. 19 of 1967 and No. 9 of 1968, which are counter-cases, arise, in the following circumstances.
The appellants Guloo alias Ghulam Rasool, Alidino, Nabidino, Haji and Ali Hassan, were convicted for various offences and sentenced as under:-
1. Guloo alias Ghulam Rasool: 2 years' R. I. For an offence under section 148, P. P. C.
2 years' R. I. For an offence under section 452, P. P. C.
4 years' R. I. For an offence under section 307, P. P. C.
2 years' R. I. For an offence under section 324/149; P. P. C.
1 year's R. I for an offence under section 323/ 149, P. P. C.
2 years' R. I. For an offence under section 13(e), West Pakistan Arms ordinance.
2. Alidino: 2 years' R. I. For an offence under section 148, P. P. C.
2 years' R. I. For an offence under section 452, P. P. C.
4 years' R. I. For an offence under section 307/149, P. P. C.
2 years' R. I. For an offence under section 324/149, P. P. C.
1 year's R. I. For an offence under section 323/149, P. P. C.
2 years' R. I. For an offence under section 13(e), West Pakistan Arms Ordinance.
3. Nabidino: 2 years' R. I. For an offence under section 148, P. P. C.
2 years' R. I. For an offence under section 452, P. h. C.
4 years' R. I. For an offence under section 307/149, P. P. C.
2 years' R. I. For an offence under section 324/149, P. P. C.
1 year's R. I. For an offence under section 323/149, P. P. C.
4. Haji: I year's R. I. For an offence under section 147, P. P. C.
2 years' R. I. For an offence under section 452, P. P. C.
4 years' R. I. For an offence under section 307/ 149, P. P. C.
2 years' R. I. For an offence under section 324/149, P. P. C.
1 year's R. I. For an offence under section 323, P. P. C.
5. Ali Hassan: 1 year's R. I. For an offence under section 147, P. P. C.
2 years' R. I. For an offence under section 452, P. P. C.
4 years' R. I. For an offence under section307/ 149, P. P. C.
2 years' R. I. For an offence under section 324/149, P. P. C.
1 year's R. I. For an offence under section323, P. P. C.
All the sentences were to run concurrently. They were, however, acquitted of the charge under section 302/149, P. P. C. It appears that the two other co-accused were found not guilty and acquitted of all the charges, though there is no mention about it in the judgment.
In the latter case, the appellants were convicted and sentenced as under:-
1. Dhani Bux: 2 years' R. I. For an offence under section 148, P. P. C.
4 years' R. I. For an offence under section 304(1), P. P. C.
4 years' R. I. For an offence under section 326/149, P. P. C.
1 year's R. I. For an offence under section 323/149, P. P. C.
2 years' R. I. For an offence under section 13(e), West Pakistan Arms Ordinance.
2. Khuda Bux: 2 years' R. I. For an offence under section 148, P. P. C.
4 years' R. I. For an offence under section 304(1)/149, P. P. C.
4 years' R. I. For an offence under section 326, P. P. C.
1 year's R. I. For an offence under section 323/149, P. P C.
3. Janu alias Jan Muhammad: 1 year's R. I. For an offence under section 147, P. P. C.
4 years' R. I. For an offence under section 304(1)/149, P. P. C.
4 years' R. I. For an offence under section 326/149, P. P. C.
1 year's R. I. For an offence under section 323, P. P. C.
4. Ghulam Nabi: 1 year's R. I. For an offence under section 147, P. P. C.
4 years' R. I. For an offence under section 304(1)/149, P. P. C.
4 years' R. I. For an offence under section 326/149, P. P. C.
1 year's R. I. For an offence under section 323, P. P. C.
All the sentences were to run concurrently.
The remaining four co-accused were acquitted.
Aggrieved by the judgment of conviction and sentence, they have come in appeals. The appellants in the former case have filed Appeal No. 305 of 1968 and Criminal Appeal No. J-321 of 1968, and the latter, Criminal Appeal No. 338 of 1968. The incident being common, I propose to dispose of them in a composite judgment.
The F. I. R. Lodged in the Sessions Case No. 19 of 1967, lodged by Mubarak reads as under:- "That I reside along with my family at village Magnapota and I have a rented shop. My sons Ghulam Nabi and Jan Muhammad also reside with me. I have a daughter Mst. Zenab wife of Parial Manghapota, whose house is close to my house. My son Ghulam Nabi has four sons, from whom the eldest is about 9 years old. His name is Bahadur. Muhammad Usman is younger and his age is about 6/7 years. Yesterday at evening time my grandsons went out of the house and were playing in the street with Shaban Shah son of Ghulam Kadir grandson of Wadero Allah Bux. The boys quarrelled with each other and they fought with Shahban Shah grandson of Allah Bux. Today at 10- - a.m. I and my sons Ghulam Nabi and Jan Muhammad were sitting in our shop. In the mean-- while, Wadero Allah Bux, Ramzan, Abdul Majid, Ali Hassan, Abdul Khaliq, from whom Allah Bux and Ramzan were armed with hatchets and the rest accused with `lathis'. On their arrival, Wadero Allah Bux abused us and said that yesterday at evening our boys fought with Shahan Shah his grandson, on which we also abused them. Thereupon the accused gave us lathi and hatchet blows. We raised cries. In the meanwhile on our cries, and on the 'hakles' of the accused, namely Guloo, Ali Dino Nabi Dino, from whom Guloo was armed with a gun and Ali Dino with a pistol, Nabi Dino with a hatchet and started to fight with us. We raised cries. On our cries Urs, Bachal, Dhani Bux, Khuda Bux and Ibrahim and others came running. The accused also inflicted them the blows and the fighting ensued. Wadero Allah Bux received injuries during the course of fighting and expired. Thereafter, we rescued from the accused and ran towards our houses. The accused chased us and accused Guloo fired gunshot on us in the house, which hit my daughter Zenab on her face and chest. Then the accused went and stood on Allah Bux. The accused inflicted us hatchet and laths injuries. And accused Guloo has inflicted gun injury to my daughter Mst. Zenab. On your inquiry I have now recorded my statement and complaint that action may be taken."
The F. I. R. In the latter case, was lodged by Ghulam' Qadir, son of the deceased Allah Bux which reads as under:- "Allah Bux is my father. About 15/17 years age my father Allah Bux enticed away Mst. Hidayat Khatoon wife of Achar brother of Allahndo and married her, who lives with my father. Ailahndo and others filed such cases against my father, but the same were dismissed by the Court. Thereafter we and Allahndo and others became on enmity terms. Hence we do not visit each other on marriage ceremonies. In the last B. D. Election, Ghulam Rasool son of Allahndo contested election in my opposition. But on the election day he withdrew thinking that he would not win the election.
Allahndo and others were saying that they would get the revenge of Mst. Hidayat Khatoon. Today dated 25-6-66 in the morning I left my father Allah Bux at the village, and I went to Hingorja for private work. Then at 11-30 a.m. Ali Dino-son of Khamiso Mangno--poto came at Hingorja and told me that "At about 10-30 a.m. While I was returning from my field and when I reached at your house, your father Allah Bux Khan was going to the "Otak" from the house. In the meanwhile beside the shop of Mubarak Mangnapoto,
1. Allahndo son of Ghatoo,
2. Ghulam Rasool son of Allahndo, 3.
Dhani Bux son of Sathi,
4. Bachal son of Sathi,
5. Khuda Bux son of Jaro,
6. Urs son of Muhammad Ibrahim,
7. Ghulam Nabi son of Mubarak,
8. Mubarak son of Bahadur all by caste Mangnapoto came out from whom Allahndo and Dhani Bux were armed with their licensed guns. Bachal was armed with unlicensed pistol, Ghulam Rasool and Khuda Bux with hatchets, and Ghulam Nabi, Urs and Mubarak with "lathis". Accused Allahndo, Dhani Bux and Mubarak gave "hakal" at the spot to Allah Bux Khan and asked him to stop as they would not spare him today. At that time on the "hakals" of the accused, the other villagers namely Nabi Bux son of Piaro,
2. Nabi Dino son of Hamzo,
3. Haji son of Ishaq,
4. Ali Hassan son of Rehman all by caste Mangnopoto came running. Within their view, the accused namely Allahndo,
2. Dhani Bux and Bachal and others fired at Wadero Allah Bux at the spot as a result of which Allah Bux fell down and thereafter accused Ghulam Rasool gave hatchet blow on the neck of Wadero Allah Bux while he was lying on the ground. Thereafter on cries of the above witnesses accused Urs, Ghulam Nabi, Mubarak and others gave lathi---blows to witnesses Nabi Dino and Ali Hassan and accused Ghulam Rasool and Khuda Bux gave hatchet blows to witness Haji. As a result of blows Haji became unconscious and fell down. There after, on our cries and gun reports the other villagers also came there running. Then the accused went runn--ing to their houses. Then we found that Wadero Allah Bux was lying dead, who had received gunshots on his colour bone. Leaving the above witnesses at the dead body of Allah Bux and unconscious Haji, and he having received grievous injuries, I have come to inform you.
On hearing the such facts I ask him that they should immediately remove Haji to the hospital and that I am going to lodge the report. Thereafter I got arranged for the conveyance and have come here to lodge the complaint that due to the above grudge, the above accused duly armed with deadly weapons have murdered my father Allah Bux intention--ally and they have inflicted the blows to the witnesses and the condition of Haji is serious. I complain that action may be taken."
The material witnesses on either side are not only partisan but were co-accused in the counter- case. They have also no assigned or attributed specific roles to most of the accused. It is also noteworthy that the learned Sessions Judge disbelieved the motives put forward by both the sides.
It is also to be seen that in both the cases, the witnesses of the incident, maintained sphinx-like silence about the injuries sustained by the other side. Their versions are garbled and devoid of truth. In Sessions Case No. 19 of 1967, the appellants Ali Hassan, Alidino, Nabidino and Haji were found to have participated in the fight, because they had injuries on their persons and admitted their presence at the relevant moment in their statements at the trial and also at the Court of Inquiry, though doing nothing more than taking the beating: As against Guloo, the finding was, "the role assigned to accused Guloo is consistent and uniform, as given by all the P. Ws. In that he fired a shot which found a victim in Mst. Zenab There could be no mistake-on the part of the witnesses as to the identity of the assailants as the incident has taken place in broad daylight and the accused are their caste-fellows and reside in the same village." All the appellants in the other case have injuries on their person.
In Jalal and others v. Emperor (27 Cr. L J 821) where the prosecution witnesses made no attempt to account for the injuries on the appellants, it was held "As the friends of the deceased for reasons best known to them, concealed the true facts and did not disclose the origin of the fight, it is impossible to apportion liability and decide which of the two parties commenced the fight and which acted in self-defence."
In Kassam v. Emperor (AIR 1944 Sind 94) in a similar situation, their Lordships observed, that the accused with injuries could not be indicated, by rule of thumb, because of the two cardinal principles of criminal jurisprudence, that the prosecution must prove its case and that there was no burden of proof on the accused.
In Janu Khair Muhammad and others v. Crown (I L R 1943 Kar. 148), where the witnesses in the counter-cases, came out with tissues of lies and left the truth untold, it was observed: "But for this miscarriage of justice, the parties have to thank themselves, when they have, for set purpose, placed before this Court, false versions of what took place, wholly inconsistent with the circumstances, and when they have supported those false versions with false evidence, they have no reason to complain, if the persons, responsible for the commission of these offences go unpunished and that so far justice has not been done."
The learned Sessions Judge, however, has sought support for the conclusions reached by him, by relying on Saindad and others v. The State (PLD 1958 Kar. 543) and Sadiq v. The State (PLD 1967 SC 356). In the former case, the witnesses of the rival factions had perjured and refused to own any responsibility era themselves. Their Lordships, by looking to the account of the fight, reached the conclusion, that the accused in both the cases, had dealt blows and inflicted injuries. It is however, noteworthy that looking to the outline of the facts involved in the case, it was found that the fight had admittedly taken place regarding the use of a piece of land as dera and the difference in the stories of the two groups was "only in regard to the manner in which-the fight began". Even in the latter case, their Lordships of the Supreme Court could salvage enough material to fix up the reasons for the conflict between the two main adversaries there, as will be borne out by the following observation:- "On a proper appreciation of all the circumstances proved in the case, the conclusion, which necessarily follows and which is not consistent with the safe dispensation of justice is that tyre was a sharp and short clash between the two men on each side, in which each struck one blow with his weapon. The two sides were armed about equally heavily as the injuries show. This appears to have been the first occasion, on which Sadiq could properly bring up with Muhammad Din the question why he had been forbidden to visit Hasan Din's house and the conclusion may safely be reached that there was a quarrel between the parties preceding the fight. Nothing that had been proved to have happened previously could indicate that Sadiq was out for revenge, i.e. The quarrel was a mere excuse for carrying out an intention to use violence."
Reverting to the facts of the case, we find that the incident had taken place in the open and not inside the shop of Mubarak. There was no blood at all inside the shop, but out in the street. The parties reside in the same village, which consists of 50 to 60 houses. They lived within a stone's throw of each other. It is anybody's guess as to how the trouble started, and took such an ugly turn, in which so much of blood was spilled. The fact that most of the appellants have injuries will not clinch the issue or lead to the inescapable inference, that they bad participated in a free fight. The injuries might have been inflicted on them, o some of them, elsewhere for no other reason except that they were from the other group. After all it is not an offence to be hit. Even the alleged recoveries of the blood-stained clothes from some of the appellants will be of no consequence, because either they had themselves bled or their relations had bled and their clothes might have been besmeared by attending on them.
As for the recovery of the hatchet by Nabidino, and the lathi by Alidino in Sessions Case No. 19 of 1967, no human blood was found thereon by the Chemical Analyser. It is nobody's case, that any fire-arms were produced either by Guloo alias Ghulam Rasool or Alidino. As for the alleged production of the pistol by the appellant Bachal, the hatchet by Khuda Bux and lathis by Ghulam Nabi and Jan Muhammad in the counter-case, it is a admitted position that both the Mashirs were from another village, out of whom Najam Ali has been examined. On his own showing, he had been taken to the vardat on Jeep by the son of the deceased in that case. It cannot, therefore, be said that he was a disinterested witness, or worthy of implicit reliance. I have therefore reached the conclusion that it is not safe to rely ob his words.
Because of the brazen-faced lies of the witnesses, it cannot be said that the prosecution has succeeded in establishing its case against any of the appellants in the two trials, beyond reasonable doubt. The appellants will, therefore, be entitled to acquittal not as a matter of grace, but of right. I will, therefore, allow the appeals and set aside their convictions. All the appellants on the bail, and their bail bonds stand cancelled.