1. SHAFIUR RAHMAN, J.--The complainant as well as the three convicts were granted Leave to Appeal separately to examine the correctness of the judgment of the High Court of Sind, dated the 6th of March, 1983 whereby two of the convicts out of five were acquitted while the conviction of three others under sections 302, 325, 324, 323 read with section 34, P.P.C. And under section 447, P.P.C. Was upheld. The convicts were, however, granted benefit of section 382-B, Cr.P.C.
2. The prosecution case, in brief, was that the deceased Muhammad Umar, a Memon, had acquired land measuring approximately five Acres in Survey No. 184/185 in Village Dhandhari, Taluka Ghora Bari, District Thatta. This land adjoined village of the accused who are Jats and Indonali, the water channel to which the Jat villagers had access through this land of the deceased. The accused, therefore, were not allowing the owners and his Haris to cultivate the land.
3. On the 29th of July, 1976, early in the morning at about 7 a.m. The deceased left his house along with his Haris, Ibrahim (P.4V.7), Hassan (P.W.8) who were to cultivate this particular piece of land and others like Ismail (P.W.10) the tractor driver, Aali (P.W.11) the owner of the tractor and Suleman (P.W.4) his Hari of another land. They started ploughing this land when the three convicts of whom Haroon was armed with a gun and others with hatchet along with the two acquitted convicts Darya Khan with a gun and A.I Khan with a revolver and six others all armed attacked them, fired at them and inflicted hatchet injuries resulting in the death of Muhammad Umar and grievous injuries to Aali (P.W.11) and simple injuries to Ibrahim (P.W.7) and Hassan (P.W.8). Suleman (P.W.4) went to the village Abadi, informed Muhammad Yaqoob (P.W.2), the brother of the deceased about the entire occurrence. Yaqoob (P.W.2) came to the spot informed himself of the details of the occurrence saw the dead body and the injured in the field and went to the police station to lodge the report at 3 p.m. The same day.
4. Khair Muhammad (P.W. 12), the S.H.O., after recording the statement came to the spot and recovered three .12 bore empties and took them into possession. The next day, the convicts were arrested and from Haroon two guns, one licensed in the name of Darya Khan, the acquitted accused and the other in the name of convicted Yaqoob were recovered. From Sahibdino convict, a hood-stained hatchet was recovered. Another blood-stained hatchet was recovered from Yaqoob. A revolver was recovered from A.I Khan, the acquitted convict. The empties recovered from the spot were reported by the Ballistic Expert to have been fired from the guns recovered while the hatchets were reported by the Serologist to be stained with human blood.
5. The plea of the accused at the trial was that they had been falsely implicated in the case. The background and the reasons for the occurrence were given by Darya Khan in the following words:- - "Survey Nos.184 and 185 were in possession of Sarang and other Jats. The deceased Muhammad Umar was interested in evicting them with force from the land. I had nothing to do with their land.
6. The deceased Muhammad. Umar had launched attack on Sarang and other Jats in March 1973 and set fire to their houses in order to evict them from the land. Sarang Jat had filed such cases against the deceased Muhammad Umar, and complainant Yaqoob and others. I produce a certified copy of complaint of that case Exh.54. Sarang had been making complaints to the higher authorities against the high-handedness of the deceased Muhammad Umar. I produce one of the applications made by Sarang against the deceased Exh.55. The dispute between Sarang Jat and the deceased Muhammad Umar was settled by way of an agreement entered into in writing in August 1974. I produce the agreement Exh.56."
7. Haroon convict denied having produced the licensed guns of Yaqoob and Darya Khan. Darya Khan explained the use of his gun by stating as follows- "I do not know if any fire cartridges were recovered from the Wardat. Shots were fired from my gun after its recovery from me and those cartridges must have been sent to the Ballistic Expert to get positive opinion. The gun was sent to the Ballistic Expert after inordinate delay."
8. Muhammad Yaqoob claimed that his licensed gun was recovered from him and not from Haroon and denied that any empty recovered from the spot matched with it. The other accused denied the recoveries from them. They produced four witnesses in defence mainly to establish the motive for the occurrence assigned by them and to prove alibi of one of them.
9. The trial Court came to the conclusion that there existed animosity between the parties and independent corroboration was necessary. The trial Court found no substantial inconsistency between the ocular evidence and the medical evidence. The recovery witness Adam (P.W.6) was considered reliable. The trial Court also found that the crime empties were recovered on 29th of July, 1976, the guns were recovered on 30th of July, 1976 and the revolver on 3rd of August, 1976 and these were received by the Ballistic Expert on the 12th of October, 1976. There was a delay of 2J months in sending these articles but evidentiary value remained undiminished. As regards the defence version, it was examined in all its details and founds that "all the evidence, of whatever worth relates to what had happened prior to the incident of this case" and held that "it is almost unimaginable that real culprits were Sarang Jat and his men and they were spared and innocent proclaiming accused were substituted.
10. The trial Court concluded that participation of five out of the eleven accused was established and of the other six was doubtful. Hence it recorded their conviction under sections 148, 447, 302/149, 325/149, 324/149 and 323/149, P.P.C. For the offence under section 148 they were sentenced to R.I. For two years' life imprisonment and fine of Rs.3,000 for the offence under section 302/149, three years'
11. R . I- and a fine of Rs.1,000 for the offence under section 325/149, P.P.C, two years' R.I. For the offence under section 324/149, P.P.C., R.I. For six months for the offence under section 447, P.P.C. All the sentenced were to run concurrently.
12. On appeal by the convicts, the learned Judge in the High Court appraised over again the entire evidence and considered Iboo alias Ibrahim to be the disinterested witness providing corroboration to the testimony of the interested witnesses. Nevertheless, the High Court found justification in holding as not proved beyond reasonable doubt the case of the prosecution against two of the convicts, namely, Darya Khan and A.I Khan. They were given the benefit of doubt and acquitted while the conviction and sentences of the other three convicts was maintained by the High Court with the modification that instead of applying section 149, P . P. C . Recourse was had to section 34 , P . P. C .
13. The learned counsel for the convicts, Mr. Muhammad Hayat Junejo has stated that Iboo alias Ibrahim (P.W.7) could not, on any principle, be taken to be a disinterested witness. Besides, his testimony does not at all inspire confidence because he did not know accused persons, was not made to identify them and had given a version of his injuries which was palpably untenable and inconsistent with the medical evidence. His testimony suffers from the same taint, if not more, as of the other witnesses.
14. The learned counsel for the complainant Mr. Aftab Akhund, Advocate, on the other hand, contended that the prosecution evidence believed against the three convicts was sufficient in all respects to establish the guilt of the two acquitted convicts also and further the opinion of the doctor with regard to the bullet injuries having been caused to the deceased was sufficient to implicate A.I Khan, the- acquitted accused.
15. The trial Court held Hasan (P.W.8), Suleman (P.W.4) and Ibrahim (P.W.7) to be interested witnesses because they were Haris of the deceased and belonged to his camp in the dispute with the Jats to which tribe the most of the accused belonged. The learned Judge in the High Court considered the mere fact that Ibrahim was a Hari not sufficient to make him an interested witness.
16. From the statement of Hasan (P.W.8) and Ibrahim (P.W.7), it is established that even previous to the occurrence, they were the Haris of the deceased in respect of other land. The disputed land had been obtained by them jointly for cultivation in that season, about two months or so before the occurrence. It appears from the documents placed on record by the accused concerning criminal proceedings between deceased (Memons) and Sarang (Jats) not accused that with regard to the cultivation of this land there was an antecedent dispute with those who had houses in the proximity and at one stage the deceased had undertaken not to cultivate this disputed land at all and to leave it fallow. In this background of enmity and dispute, the Haris, particularly those who had been cultivating lands of the deceased since long before the occurrence, would certainly be interested witnesses and the trial Court justifiably treated, among others, Ibrahim to be an interested witness. There was, therefore, no occasion for the High Court to have treated him as a disinterested or independent witness and to have considered sufficient his statement, even for corroboration of the interested testimony.
17. The statement made by Ibrahim (P.W.7) is in serious conflict with the medical evidence. The Investigating Officer was the first who took note of the injuries received by Ibrahim and these are recorded in the Injury Sheet prepared by him (Exh.P.25) as follows:- "(1)An injury like a cut, on the right wrist, which has bled.
18. (2)An injury on the right side of the head.
19. (3)An injury on the left side of the head, like a cut, which has bled.
20. (4)One pellet injury on the sides of these injuries, which has bled.
21. (5)An injury like a contusion on the chest, which has swollen, which has bled.
22. (6)An injury on the left arm near the wrist, having swelling mark.
23. (7)An injury near right shoulder like swelling mark.
24. (8)An injury near right side's ribs, like swelling mark.
25. (9)An injury on right thigh and buttock, like swelling.
26. (10)An injury on the left thigh, like swelling.
27. (11)Two injuries like contusions on the back on left shoulder blade.
28. (12)An injury near left shoulder on the shoulder blade which has swollen.
29. (13)An injury on the male organ, which has swollen."
30. Dr. Moinuddin (P.W.9) who appeared to be a mature doctor of 57 years of age had, on examining Ibrahim, noticed the following injuries:- (1)Incised wound 2" x 3/4" x skin deep on the back of right forearm, lower part.
31. (2)Incised wound 2--" x --" x scalp deep on right parieto-temporal region.
32. (3)Three contusions, parallel to one another, 2--" x --" each, on right arm, front side, with lacerated wound -- " x --skin deep, below the contusion.
33. (4)Contusion -- " x-- " on left parietal region.
34. (5)Contusion 10" x 2" on their right chest back, with diffused swelling, (6)Swelling 2" x 2" with abrasion 1" x 1/10", on upper part of sternum.
35. (7)Swelling 2--- x 2" with abrasion I" x 1/10", on lower part of left forearm.
(8) Lacerated wound 11" x 4" and bifurcation of pinna of left ear."
36. He gave the opinion that his injuries Nos.1 and 2 appeared to have been caused by means of a sharp and cutting weapon such as a hatchet and the rest of the injuries by means of a blunt weapon such as a Lathi. The injury No.7 was X-rayed and fracture of ulna bone at its lower one- third was detected. He found injuries Nos.7 and 8 on the person of Ibrahim to be grievous and all the others to be simple.
37. At the trial, Ibrahim claimed to have received as many as 17/18 pellet injuries. This discrepancy in the injury statement prepared by the Investigating Officer, the opinion given by the doctor and the statement made by Ibrahim was at no stage sought to be explained and properly verified either by the Investigating Officer or by the prosecutor. The discrepancies and the variance being so conspicuous on the record, it is difficult to extend the benefit of it to the prosecution. On the other hand, the interested nature of the witness Ibrahim added to this discrepancy would made him testimony of little use to the prosecution.
38. The recovery of the incriminating articles has been supported by Adam (P.W.6). In one breath he said "I had not acted as a witness in any other case against the accused party". In another breath, he admitted that he was a witness in a case of assault against accused Haroon Holani and it was filed by Ramzan Memon who was related to the deceased. This made him a partisan witness like others.
39. Considering all aspects of the prosecution case, we find that in view of the interested and discrepant nature of the testimony on record, the independent corroboration is not forth coming so as to sustain the conviction and sentence of the convicts consistent with the principles of safe administration of criminal justice. Hence giving the benefit of doubt, the appeal of convicts, namely, Criminal Appeal No.55-K of 1983 is allowed. Their conviction and sentence is set aside and if they are in detention, they shall be released forthwith unless they are required in some other case. Fine, if any, paid shall be refunded to them. The result is that Criminal Appeal No.54-K of 1983 against the acquittal of the two convicts fails and is dismissed.