The three appellants herein, namely, A.I Bux, Wazir and Jaffer were tried by the learned Sessions Judge, Jacobabad and all the three were con--victed under sections 394 read with 397, P. P. C. And section 13-D of the Arms Act. Under the former count each of them was sentenced to seven years'
R. I. And to pay a fine of Rs. 500 or in default to suffer six months' R. I. More and under the second count each one of them was sentenced to six months' R.
1. Both the sentences were ordered to run concurrently in respect of all appellants. They have now jointly appealed against their convictions and sentences.
2. The relevant facts of the prosecution case briefly are these, as stated by the complainant Gul Khan. Gul Phull is the brother of the complainant, Mst. Kaim Khatoon (P. W. 4) is the daughter of Gul Phull and the wife of appellant A.I Bux, Muhammad Umer (D. W. 1) is the brother of Mat. Khani, the first wife of appellant A.I Bux. Nehal (P. W. 3) is the brother of appellant A.I Bux and also is father-in- law of appellant Wazir. Allahdino (P. W. 2) is married to the sister of the complainant. The com-- plainant, D. W. Muhammad Umer and P. Ws. Nehal and Allahdino sly resided in village Khair Muhammad Panhwar which is also called village Rats Muhammad A.I Brohi. The house of P. W.
Allahdino is about 8 or 10 paces away from the house of the complainant. Near the house of the appellant about 6 or 7 paces away from it is the cattle-shed in which the cattle consisting of 225 goats and sheep and one female camel used to be kept during night time, when D. W. Muhammad Umer slept in the cattle pen for watch over the animals at night. The occurrence in this case is said to have taken place at sun-set time on 7th of March 1969. About 10 years before the occurrence P.
W. Mst. Kaim Khatoon was married to appellant A.I Bux and about 2 years before the incident she was declared to be on illicit terms with one Abdul Rehman Brohi by her husband and, therefore, she came and resided with her father in Jacobabad town in Soomra Mohalla.
3. The appellants Wazir and Jaffar and the alleged absconding accused Farid are said to be brothers and the appellant A.I Bux is their maternal uncle. The cattle consisting of 225 goats and sheep and one she-camel belonged to the-complainant Gul Khan, D. W. Muhammad Umer and P.
Ws. Nehal and Allah Dino. The motive for the prosecution which is suggested is that on account of P.
W. Mst. Kaim Khatoon having been declared Kari, her husband the appellant All Bux nursed a serious grudge against her father and, therefore, was desirous of taking revenge from him particularly when her father wanted P. W. Mst. Kaim Khatoon to have divorce from her husband. A suit for dissolution of marriage is also said to have been filed by Mst. Kaim Khatoon against her husband before the occurrence.
4. On the day of occurrence at sun-set time complainant Gul Khan and P. W. Allahdino were fitting outside the house of the complainant near its door. The cattle were in the cattle-shed and D. W.
Muhammad Umer is said to have been looking it after at that time which in itself appears to be rather improbable as I. Will discuss the story of the prosecution later on and show it to be highly improbable allegation of facts. However, at that time, it is the cast of the complainant, that six persons came there out of whom they identified (buy, who were the present three appellants and the absconder Farid. The remaining two culprits could not be identified by them as they were not known to them Previously. The there appellants and absconder Farid is said to have been armed with guns and the remaining two unidentified persons had hatchet and gun each. All these culprits, according to the complainant, who made three different statements at this stage ultimately said that the culprits went to the cattle-shed from where D. W. Muhammad Umer came out and the culprits fired at him. In the meanwhile the com--plainant and P. W. Allahdino ran away due to fear.
According to the complainant-appellant Wazir had fired at D. W. Umer. Thereafter, it is said by the complainant that all these 6 culprits took away all the cattle heads and went away. D. W.
Muhammad Umer was injured by means of gunshot fired at him. According to the complainant D.
W. Muhammad Umer told him that he was injured by the shot which was fired by appellant Wazir.
The injured D. W. Umer was kept in the house of the complainant for the night and in the morning, the complainant and P. W. Allahdino removed him in a bullock-cart to the Saddar Police Station, Jacobabad. Which was only 4 miles away and at 9-30 a.m. The complainant lodged his F. I. R.
There which is Exh. 6.
5. The F. I. R. Was registered by incharge A. S. I. Ghulam Mustafa (P. W. 9). After recording the same the A. S. I. Prepared the statement of the injuries of the injured D. W. Muhammad Umer. He then sent the injured to the Hospital for examination, treatment and certificate. The injured was unconscious at that time. Thereafter, the A. S. I. P. Repaired to the scene of offence, which was pointed out to him by the complainant. From there two empty cartridges were recovered and some blood stains were also seen at that spot. The cattle-shed was found to be nearby that place. A Mashirnama of the wardat, Exh. 26, was prepared and the Mashies were Beggan (P. W. 6) and Kalo. The A. S. I., then recorded the statement of P. W. Allahdino. After that he made efforts for securing the culprits who were not traceable, according to him. On 11-3-1969 he recorded the statement of injured Muhammad Umer and P. Ws. Nehal, Mst. Kaim Khatoon and Abdul Rehman Brohi. It appears that during this period a Faisla between the parties had been made by their Sardars, namely, Sardar Jahangir Khan and Khair Muhammad Panhwar. It appears in the evidence that it was decided in the Faisla that the appellants should return the robbed cattle to its owners and Gul Phull should pay a compensation of Rs. 2.000 to appellant A.I Bux in respect of the letter's wife having been declared Kari. In a vague manner it also appears in the prosecution evidence of the complainant that about 70 sheep were returned by the appellant party as they were left at tire well. The place is exactly clear from the evidence and the record does not bear out these facts in an exact nature.
However, on 24-4-1963, complainant Gul Khan produced 40 sheep and P. W. Nehal 30 sheep, which were recovered, before the A. S. I. P. W. Ghulam Mustafa, who prepared two separate Mashirnamas, Exhs. 29 and 30 respectively in presence of Mashies Khuda Bux and Dad Muhammad. On the same day appellant Wazir and A.I Bux surrendered themselves at the police station and the A. S. I. Put them under arrest as per Mashirnama Exh.
28. On 28-6-69 the A. S. I. Arrested appellant Jaffar from Gambat. He also said that Farid was still absconding. On 7-5-1969, the S: H. O. Of Saddar Police Station, Jacobabad Muhammad Qasim (P. W. 8) challaned appellants Wazir and A.I Bux in the Court. On 30-6-1969 he challaned Jaffer in the Court. The three appellants were in due course committed to the Court of Session where they were tried with the result already mentioned above.
6. All the appellants in their statements under section 342, Cr. P. C, at the trial denied their guilt and professed innocence. They in fact denied all the prosecution allegations.
7. Appellant A.I Bux was put a question whether he and his companion brought back 20 cattle heads and returned them to the complainant party to which he answered in the negative. Intact it will be seen that the prosecution, allegation is that 70 sheep were returned by; this appellant and Wazir but only 20, have been, mentioned in this question to him and similarly to ether appellants who have all denied, the allegation in this question. Appellant A.I Bux also stated that Mst. Kaim Khatoon was his legally wedded, wife and he had never suspected nor fidelity and never declared her l art with Abdul Rehman Brohi He added that Mst. Maim Khatoon Left firs house at the instigation of her father and asked for divorce from him. He lastly said that they had all been implicated falsely in this case because of enmity of Gul Phull, father of his wife, who it is alleged was interested in getting his daughter divorced from the appellant A.I Bux so that he should marry her some where else for consideration of money. All Bux further added that the prosecution witnesses who have deposed against him are related to the complainant ad were under his influence. The remaining two appellants have adopted the statement given by appellant A.I Box and they have admitted their relationship with him.
8. The appellant examined Muhammad Umer who was actually shown in the challan-sheet as a prosecution witness but was given up by the prosecution and hence do was examined by the appellants in their defence.
9. The fact that D. W: Muhammad timer was injured by mesas of a gunshot, it appears from the evidence of the doctor who examined him does not admit of any doubt. This injured was examined by Dr. Habibullah, whose deposition in the committal Court was brought on the record of the trial Court as Exh.
35. He has stated therein that on his examination of the injured he found the following injuries oft his person:-
(1) One lacerated punctured type of wound of about -- in diameter on the outer side of the right fore-arm.
(2) One same type of wound on the hitter side of the right fore-arm.
(3) Lacerated wound about -- ' lit diameter on the face just below the left eye with the swelling of the left eye."
According to the doctor the nature of injuries Nos. 1 and 2 were simple aid injury No,. 3 was of grievous nature. He also stated that the weapon used for causing these injuries was a discharge of a fire-arm. The Doctor---s evidence thus establishes conclusively that. D. W. Muhammad Umer eras injured by means of a gun shot.
10. Against the appellants the prosecution hat adduced the ocular testimony of the complainant and P. W. Allahdino and it has examined P. W. Nehal in corroboration of their testimony as well as P.
W. Mat. Maim Khatoon in order to prove motive against the appellant A.I bust as has been already stated above. But as it will be teen front my discussion of the ocular evidence that it is so discrepant slid inherently improbable that no implicit reliance can be placed on it.
11. Coming to the ocular evidence the complainant has Stated the facts of the prosecution as have been detailed above in the narrative of the prosecution story. Although he has said in his examination-in-chief that appellant Wazir tend fired at P. W. Muhammad Umer but he has stated in his F. I. R. With which he was confronted by the learned Public prosecutor at the trial who declared this witness hostile and it was established that in the F. I. R. He has said that appellant A.I Bux had fired two shots. Thus, there is a discrepancy in his evidence whether one shot was fired or two shots and as to by which appellant. In his examination---in-chief he has said that D. W.
Muhammad 'Umer injured told him that Wazir had fired a shot at him. The complainant also stated that out of the 70 heads of cattle I.e. Sheep 40 belonged t0 hip $and 30 belonged to P, W. Nehal and according to him these cattle were recovered by them about 20 or 25 days after the occurrence: Again, the complainant in his cross---examination has been shown to have said in the committing Court that Wazir fired two shots in his presence and the shots hit Umer vile extract Exh.
10. He wits also cross-examined in which he further stated that appellants Jaffer, Wazir and Farid had guns while A.I Bux was armed with hatchet vide Extract Exh. 12 of the committal Court. He has also been confronted with his committal Court statement that out of fear they had concealed themselves in the house of Nazir Brohi, and after departure of the appellants they came to the spot and saw Umer injured and asked from him as to what had happened, as per extract Exh.
13. This statement in the committal Court clearly shows that the firing at Umer injured does not seem to have been witnessed by the complainant nor P. W. Allahdino as according to the complainant as he says that they had run away on seeing the 6 culprits. The complainant in the beginning of his examination- in---chief has made three different statements showing his prevarication and this has been put as a question to him by the trial Court which is as under:- "In examination-in-chief in Court, you have given three conflicting versions about the firing by the accused. Firstly, you said that accused persons came and entered your house and enquired about Mst. Kaim Khatoon, and you told them that she was not present. Thereupon, accused persons fired at Muhammad Umer and we ran away due to fear. Secondly, you have stated that accused persons did not enter the house and the talk took place between you, outside the door, whereafter accused fired at Umer. Thirdly, you have stated that accused persons came from the side of the cattle-shed and had fired at P. W. Umer and no such talk took place between you, Which of these three statements are correct and which other two statements are false?"
The answer to this question is as follows:- "Out of these three statements, the second statement that accused persons stood outside the door and P. W. Umer came from cattle shed, and accused fired at him and took away the cattle heads is the true statement, and the other two statements made by me are false."
12. This one answer in itself by the complainant will show that he is capable of speaking lies even on the minor details of the incident. In fact he has not been believed by the trial Court which has issued a notice against him under section 193 to show cause why he should not be prosecuted for perjury and in my opinion rightly so.
13. Next is ocular evidence of P. W Allahdino. This witness regarding the incident substantially said that tie incident took place about 3 or 4 months before he was giving evidence whereas in fact the incident had taken place one year and 5 months before he was giving evidence. Accord--ing to him it was at sunset time. He was in his house. This would show that the complainant and his statement that he was in his house at that tine are conflicting. This witness then heard reports of gun-fire coming from the cattle-shed which was at a distance of 20 or 30 paces from his house. He and complainant UL Khan arrived at the spot. They saw D. W. Muhammad Umar lying under by the gun shots This witness saw four accused persons namely, appellants, A.I Bux, Wazir, Jaffer and Farid and not six culprits as by the complainant, All the three appellants, according to him, were armed with guns. The appellants threatened them not to come near and further stated that they had come to kill Mst. Kaim Khatoon, a statement not made by the complainant in his evidence at all, They informed, the culprits that Mst. Kaim Khatoon had gone to Jacobabad. Thereafter four culprits according to this witness, removed the cattle heads from the cattle-shed and went away.
According to him the cattle heads in the shed belonged to Gul Khan, Umer, Nehal and this witness.
He also stated that he had there 10 heads of cattle in the shed. Hut he did not know how many belonged to other perms. He also stated that they stood aside in fear, a statement inconsistent with that of the complainant who said that he and this witness had run away, but according to this witness they had stood aside in tear because the culprits were armed with guns. After the departure of the culprits they went near injured Umer who was not capable of speaking. Once again, this statement contradicts the evidence of the complainant who said that Umer had talked to thorn. This witness P. W. Allahdino further stated that they removed injured to the Police Station and Gul Khan lodged F. I. R. There. He also then stated that his cattle heads which were taken by the appellants were not restored except one sheep which statement has not been made at all by the complainant who said in his testimony that 40 sheep belonging to him and 30 belonging to Nehal were returned by the appellants A.I Bux and Wazir. This witness P. W. Allahdino has also said that P.
W. Nehal was not present at the time of occurrence as he was in his village and he came back 4 or 5 days aver the occurrence and had narrated to him the facts of the incident, it will be seen from the above detailed statement of this witness P. W, Allahdino that his evidence in his examination- in-chief itself is at variance with that of the complainant. Furthermore, this witness admits that many persons from the village came to the spot after hearing the report of the gun fire and he remembered two names out of them who were Ramzan and Nazar. He also said in his cross- examination that complainant Gul Khan and Nazar went to Khair Muhammad Panhwar to inform him after the firing. This statement has been made by him in the committing Court, extract Exh. 16 of which has been brought on the record of the trial Court. So that it is quite clear from the admissions of this witness that many persons had turned up at the scene of the crime on gun reports from the village and two persons out of them in fact have been named but none of these persons who would have become independent witnesses has been examined. It is also admitted by P. W. Allahdino that the complainant had gone to Khair Muhammad Panhwar to inform him about the incident whose house, the evidence shows, was about 300 pas away from the scene but Khair Muhammad Panhwai has also not been examined, although he is a zamindar and Sardar of the complainant-party and as such a reputable and a reliable witness. Further according to this witness Allahdino, Umer was unconscious for the whole night, a statement to this effect was not made by P. W. Gul Khan. Still further on in his cross-examination he has said that 70 sheep were returned out of which 40 belonged to Gul Khan and 30 belonged to this witness Allahdino. The complainant has said that 30 sheep out of 70 sheep belonged to Nehal. Thus, there is discrepancy even ins regards the return of the cattle heads as alleged by the appellants A.I Bux and Wazir. The story that these appellants had returned 70 sheep also, therefore, is not free from doubt Nor the question has been put to them in their statements under section 342, Cr. P. C. That they had returned 70 sheep. Therefore, this fact cannot be taken into Consideration as incriminating circumstance against them. Again P. W. Allahdino has been contradicted with his police statement where he has said that the appellants took away 12 heads of cattle belonging to this witness, a third story altogether.
14. The above detailed facts will show that the ocular evidence is not free from doubt in any case.
However, the story that robbery or dacoity of 225 sheep sad cattle and a female camel would be committed at sun: set time while there was still light in a village where there are 40 or 50 houses seems rather very improbable and what is surprising is that none of the other villagers who could have become independent witnesses have been examined by the prosecution.
15. Next is the evidence of P. W. Nehal. He is not an eye-witness and he merely states in a not-shell that he was not present at the scene of offence on the day of occurrence and he was in his village Munderani. He came back to the village after the occurrence but the complainant did not tell him the names of the culprits at that time but subsequently 2 or 3 days thereafter the complainant gave him the names of these persons and the absconder Farid. He also stated that the complainant did not tell him the details of the occurrence. He then said that 30 heads of cattle belonged to him out of those returned by the appellant side whereas P. W. Allahdino has claimed these 30 cattle heads to be his. This witness was also declared hostile by the learned Public Prosecutor and cross-examined. In his cross-examination he has said that the complainant did not tell him that the appellants were armed with guns. His statement in the committal Court was also brought on record under section 288, Cr. P. C. Which need not be referred to as his evidence is mere hearsay evidence. In any case his two versions in the committal Court and in the Sessions Court are conflicting, therefore, his evidence also is not reliable. He further contradicts the complainant and P. W. Allahdino as already shown above and for that reason too his evidence is of no avail to the prosecution.
16. The fourth prosecution witness is Mst. Kaim Khatoon, who has merely stated that she was married to the appellant A.I Bux and she lived with him after her marriage for about three or four years but subsequently her husband had accused her of having illicit relations with Abdul Rehman Brohi. After that she left the house of her husband and stayed with her father in Jacobabad town.
She had also filed a suit for dissolution of marriage against her husband which was pending.
According to her, her husband keeps on holding out threats that he would kill her. In her cross--- examination she went on to say that her husband had seen her in com--promising position with Abdul Rehman. She further admitted that there was no Faisla in respect of accusation of her being a kari which also shows that no Faisla regarding the return of the alleged robbed cattle and Mst.
Kaim Khatoon being kari at all took place as the complainant would have us believe. The evidence of P. W. Mst. Kaim Khatoon is mainly regarding the motive. Even if she is believed and so also the complainant to the question of motive the allegation 0f the complainant that appellant A.I Bux was annoyed with the father of his wire, therefore, he wanted to wreck vengeance as such he alongwith his companions committed robbery of his and other witnesses' cattle heads. This allegation of motive in itself appears highly improbable and unworthy of belief. If the appellant A.I Bux had any grudge it was father of his wife and not against the brother of his father-in-law and not only whose cattle he is said to have robbed but also robbed the cattle of his other relations as well which too again is highly improbable. I, therefore, find that the motive alleged by the prosecution is of no avail to its case.
17. Furthermore in this case there is gross inordinate delay in lodging F. I. R. The incident is said to have taken place at sun-set time while police station being only four miles away from the place of occurrence and admittedly connected by a road still F. I. R. Was filed at 9-30 on the next day morning. For this delay the prosecution has not offered any explana--petition at all. Therefore, this ground also goes to make the prosecution case doubtful,
18. The upshot of the whole discussion of evidence made above dearly leads to the conclusion that the prosecution case is not free from doubt against the appellants on the prosecution evidence itself. But what is more is that the appellants have examined Muhammad Umer, the injured person in their defence who has supported the defence case. This witness Muhammad Umer says substantially that the incident took place after sun-set after they had taken their night meals. At that time he was in cattle shed. He saw shadow of a person. Then he was fired at and he fell down injured. His eyes were bleeding. After that he became unconscious and did not know what had happened thereafter. Again said that he was not unconscious but he was in his senses. After that complainant Gul Khan and Dina came to the spot. On enquiry he told them that he did not identify the culprits. These two witnesses, then went away in search of the accused persons and came after about 11 hours. He enquired from them as to who were the culprits to which they replied that they could not see any culprits around. He also alleged that complainant Gul Khan, thereupon, suggested to him that they would file a false case against appellant A.I Bux and others to have back Mst. Kaim Khatoon restored. But this witness did not agree with them and told them that he would not be a witness to a false case. He also stated that appellant A.I Bux had never declared his wife Kari. He then said that at the time when he was fired at no theft took place. He then added that he does not know what happened thereafter. So that it will be seen from the examination-in-chief of this D. W. That clearly no culprits were identified by anybody and it is also doubtful, according to his evidence whether any robbery was committed. This evidence of the defence witness has not been shaken in his cross-examination, therefore, it goes to belie further the prosecution allegations against the appellants. Thus, taking into consideration also the defence evidence it cannot be said that the prosecution have proved their case beyond all reasonable doubt.
19. For the reasons stated the appellants are entitled to be acquitted and, accordingly, I set aside their convictions and sentences and acquit them all. They are all in Jail and will be released forthwith unless required to be detained let connection with any other matter.