The appellants have been convicted by the learned Sessions Judge Jacobabad by his judgment dated 17-5-1986 under section 302, P.P.C. And sentenced to life imprisonment and fine of Rs.1,000 each in default to undergo four months' R.I. More.
2. The facts in brief are that deceased Fareed was brother of complainant Rasheed and son of P.W.
Jumo. On the night of incident the complainant Rasheed, his father Jumo, his brother Fareed and Rafique were sleeping in the House and at mid-night they heard the call from outside of their house in response to which they went out and saw accused Leemon and Tahloo standing there who told Fareed that his guests were standing outside the village. They called P.W. Yar Muhammad from his house and all then along with Yar Muhammad accompanied the accused Leemon and Tahloo. When they covered about 1-- miles from their village and reached at hand pump they saw accused Ghulam Akbar and Abdul Razzak standing there with guns in the land of Ahmad Yar Khoso. Accused Tahloo took gun from Abdul Razzak and accused Leemon took gun from accused Ghulam Akbar. Both the accused Tahloo and Leemon fired gun shorts at Fareed which hit him and he fell down. On the report of the gun shot P.W. Ali Muhammad was attracted. The accused made good their escape along with the guns. Accused Abdul Razzak threatened the complainant party not to come near them else they would be murdered, as they had murdered the Karo. Fareed succumbed to the injuries there. The complainant went to the Police station and lodged the F.I.R.
Which was recorded on 8-6-1984 at 8-15 a.m. The report was recorded by Zahid Hussain S.H.O. Thul who secured two empties from the Wardat vide Mashirnama Exh.11 in presence of Mashir Dilijan P.W.3. Accused were arrested on 11-6-1984 vide Mashirnama Exh.13 in presence of same Mashirs. On 26-8-1984 accused Tahloc produced gun from the beddings of his cot vide Mashirnama Exh.20 in presence of Mashirs Muhammad Qasim and Muhammad Hashim. Accused Leemon produced gun from a box lying in his house vide Mashirnama Exh.21 in presence of same Mashirs. The guns were sent to the Ballistic Expert and the report was in positive. The motive for the alleged offence is that 21 years before the incident Mst. Subhan wife of Ghulam Rasool who is brother of acquitted accused Ghulam Akbar and son of Abdul Razzak had disappeared and the acquitted accused suspected Fareed to have enticed away Mst. Subhan and threatened to murder him as Karo.
3. At the trial, the prosecution examined complainant Rasheed, his father Jumo and caste-fellow Yar Muhammad as the eye-witnesses. Corroboration was sought from the recovery of two crime weapons at the pointation of the accused from their houses, and the motive as alleged by the complainant. Learned trial Judge disbelieved the recovery on the ground that the incident had taken place on 8-6-1984, the accused were arrested on 11-6-1984 and the recoveries have been effected on 26-8-1984. As the recoveries have been made after 10 days of the arrest of the accused, therefore, they were not taken into consideration. Apart from it, the Investigating Officer in his deposition has stated that after the arrest of the accused, their houses were searched but nothing incriminating from their houses. He has also stated that after the accused he had interrogated them for three to four times but they were not prepared to produce crime weapons. In these circumstances the recoveries have been rightly excluded from consideration.
As regards the motive, the -complainant has admitted that the case of abduction of Mst. Subhan proceeded against the brother and he was bailed out in that case. His brother used to live in that village and used to attend hearings of the case. He has also admitted that accused Ghulam Akbar, Abdul Razzak and husband of Mst. Subhan also lived in their village and they used to come across with the accused on way during this period. His brother used to cultivate the land. Similarly the present appellants were also residing in the same village but the complainant party did not apprehend any danger from the accused persons. The appellants have denied the prosecution allegation about the motive. Even otherwise it is not believable that when the accused persons had sufficient time and opportunity to take the revenge why they had not taken revenge during all this period. Moreover, if there was any motive that relates to the acquitted accused and the absconding accused Abdul Razzak but the trial Court acquitted Ghulam Akbar of the charge. There is no allegation that Ghulam Rasool husband of the lady had ever attempted to take the life of the deceased.
P.W. Jumo in his deposition has stated that he does not know if the accused had made private Faisla with Aziz Buriro but he had heard of it that Aziz Buriro was held responsible for abduction of Mst. Subhan. The witness does not know if Aziz Buriro had paid compensation to the accused persons. Thus, the prosecution story about the motive is contradicted by statement of P.W. Jump. It is also unbelievable that when there was enmity between the accused persons as the accused had a strong motive then all the inmates of the house would accompany the accused persons to the place of occurrence. The motive, in such circumstances cannot be relied upon as a corroborative piece of evidence against the appellants particularly in view of the fact that Abdul Razzak had been acquitted.
4. The trial Court has accepted the evidence of three witnesses who according to the prosecution have witnessed the incident. As stated above P.W. Rasheed is son of P.W. Jump and P.W. Yar Muhammad is their caste-fellow. The prosecution story is most unnatural and against the natural behaviour of human beings. In the mid-night there was a call from outside the house and all the inmates of the house went outside. It does not appear to reason that all would go outside on the call if it is accepted that they apprehend any danger then they would not go without any arm. Then it is stated that the appellants had told the deceased that his guest was waiting outside the village but the P.Ws. Did not inquire from the witnesses the names and particulars of the guest. It also does not appeal to reason that the complainant party would accompany the appellants without any arm. The witnesses have stated that they had seen the accused Abdul Razzak and Ghulam Akbar armed with guns. If there was any motive then these persons would have fired at the deceased but they had not done so.
Learned counsel appearing for the State has submitted that the present appellants were hired assassins. Though there is no evidence on this score but even if it be admitted then Abdul Razzak and Ghulam Akbar who have the motive would not have been present at the place of Wardat. The evidence of these witnesses do not inspire confidence. It is most improbable in the circumstances of the case.
Then there is delay in lodging of the F.I.R. The incident had occurred in the mid-night. P.Ws. Have admitted that there was high-way about 50 paces away from the Wardat and trucks were plying during the whole night but the report was lodged at about 8-15 a.m. And the explanation given by the complainant is contradicted by the above facts.
The ocular evidence is also contradicted by the medical evidence. All the three eye-witnesses have stated that both the accused had fired at Fareed. On the other hand according to Doctor Ghulam Muhammad who performed autopsy on the dead body of the deceased he found the following injuries:---- "(1) Multiple lacerated punctured types of wounds about 4 in number with margins pigmented and inverted into chest cavity deep scattered in an area which extends from above at 3rd intercostal space above upto 6th intercostal below near mid line on right side of the chest. All wounds of entry.
(2) A lacerated punctured type of wound 4 c. m. In diameter with margins pigmented and inverted into abdominal cavity deep situated at level of left renal angle on back side of trunk. Wound of entry.
(3) A lacerated punctured type of wound 1.5 c.m. In diameter with margins everted into abdominal cavity deep at mid epigastric region. Wound of exit.
(4) Two lacerated punctured types of wounds each about 1 c.m. In diameter with margins everted situated side by side above and left to the umblicus.
Injury No.2 is on the back side of trunk. Thus, the medical evidence is contradicted by the fact that there was one injury on the back.
5. In these circumstances the prosecution has failed to bring home, the charge against the appellants as the ocular evidence consists of improbabilities which cannot be accepted. The appeal is accepted, sentence and conviction recorded against the appellants are set aside.
The appeal was disposed of by the short order dated 18-9-1986 and the above are the reasons for the same.