1. ABDUL RASOOL AGHA, J.--Appellant Sodho son of Khamiso was tried alongwith three acquitted accused Ramzan, Janib and Chakar by the 1st Additional Sessions Judge, Kandhkot. Vide judgment, dated 12-11-1987 the learned trial Judge while acquitting three co-accused convicted the- appellant under section 302, P.P.C. Read with section 34, P.P.C. And sentenced him to death. The appellant was further convicted under section 307; P.P.C. Read with section 34, P.P.C. And sentenced to suffer R.I. For four years and under section 353, P.P.C. To suffer R.I. For one year, the sentence of imprisonments was directed to run concurrently. The appellant has filed the present appeal against the impugned judgment. The case of the prosecution as per F.I.R. Is that on 13-10- 1983 P.C. Jamaluddin of P.P. Badni ledged report which was registered as Crime No.94 of 1983 at police station Buxapur District Jacobabad. The report was lodged which reads as under.- "Complaint is that I was posted at P.P. Badni, some 11 months back. Abdul Hadi Khan Odho Js A.S.I.
2. I/C of P.P. Badni. Today morning A.S.I. Abdul Hadi entrusted accused Mehrab s/o Imam Bux to me and P.C. Muhammad Ferhad arrested under warrant of Honourable Additional Sessions Judge Kandhkot, for producing him before the said Court. A.S.I. Abdul Hadi gave me a rifle and 20 bullets and to P.C. Muhammad Ferhad a handcuff and a chain. We handcuffed the accused and the chain was put in the belt of P.C. Muhammad Ferhad. We started from P.P. Badni for Kandhkot, as per Roznamcha entry No.2, dated 13-10-1983 at 8.30 a.m. With accused Mehrab in our custody on a private Datsun to produce him before the Court. We produced the accused Mehrab Merhal in the Court of Additional Sessions Judge, Kandhkot. We under the letter 1542, dated 13-10-1983 by the Court were directed to take the accused to judicial lock-up Kashmore. We both the P.Cs. With accused in our custody reached the Kandhkot Wagon Stand and got into the Wagon No.991-297 Sukkur, bound for Kashmore. We sat on a seat just succeeding the front seat. On the same Wagon sat Imam Bux, the father of U.T.P. Mehrab and his spiritual Guide Syed Jial Shah s/o Kamal Shah on the front seat. Just behind our seat was sitting Marote of U.T.P. Behrab namely Miran s/o Nabi Bux Merhal. The wagon was fully occupied by passengers. The wagon was driven by Muhammad Murad Bahalkani r/o Kandhkot. The remaining co-passengers sitting in the wagon were not known to me. The wagon set out from Kandhkot for Kashmore at 11.35 a.m. And steamed into Buxapur Bus Stand at 12.00 noon, where driver Muhammad Murad stopped the wagon for dropping the passengers. Some passengers got down from the wagon. In the meantime I saw Nihal, Sodho both sons of Khamiso, armed with guns, Chakar s/o Wahid Bux with a hatchet, Ramzan s/o Khamiso and Janib s/o Sodho with lathis, all by case Merhals and residents of their own village deh. Samon Taluka Kashmore, came in front of the Wagon. Nihal and Sodho Marhals having challenged .U.T.P.
3. Mehrab and his father Imam Bux to be bold as they had murdered their man namely Kehar having unrighteously declared him as Karo. Saying so accused Nihal fired from his gun at Imam Bux and U.T.P. Mehrab which fire hit wind screen but Imam Bux and U.T.P. Mehrab and we saved ourselve by ducking down our seats. In the meantime accused Sodho fired at Imam Bux from the left side of window of the wagon which hit him who fell down crying in the wagon. Then accused Nihal having re-loaded the gun attempted to get into the wagon through its door and to kill. U.T.P. Mehrab. I just to save myself and U.T.P. Mehrab fired at Nihal on lower part of his body from my service rifle while sitting in the wagon. The fire hit accused Nihal in his leg. Accused Nihal fell down with his gun. Other accused persons seeing Nihal fall down went away towards east into paddy crop. We did not chase the accused persons as a U.T.P. Was with us. We then saw deceased Imam Bux had sustained a fire arm injury on his left scapula and was bleeding and was dead. We also saw accused/deceased Nihal who sustained a fire-arm injury on his right thigh and was bleeding and was dead. Then having left P.C. Ferhad to look-after the dead body of accused/deceased Nihal and his gun, I having U.T.P. Mehrab in my custody and the dead body of Imam Bux in the same wagon have come to lodge of Imam Bux in the same wagon have come to lodge the complaint.
4. The complaint is that above-named accused persons armed themselves and in furtherance of their common intention to avenge the murder of Kehar s/o Nihal and having fired at U.T.P. Mahrab, and his father Imam Bux have murdered deceased Imam Bux. In performance of my official duties, just to save myself and U.T.P. Mehrab, I have fired from my service rifle at the lower part of body of accused/deceased Nihal who died of excessive bleeding from his thigh. I am complainant and request for investigation:' .
5. P.W. 6, Allah Jurio, A.S.I. Incharge of P.S. Buxapur after recording of F.I.R. Started with the investigation. He prepared a memo about the wagon bearing No.991/297 in which deceased Imam Bux was murdered and his dead body was brought to police station in that wagon. He secured blood-stained cover of seat then he prepared inquest report of the dead body in presence of the mashirs Sajawal and Ghulam Shah which is produced by him as Exh. 12, thereafter in company of complainant he proceeded to the wardat which was situated on Kandhkot Kashmore read at Bus Stand of Buxapur town where dead body of Nehal was lying and from the place blood stained earth from wardat was secured a gun which was found lying near the dead body was also secured in presence of same mashirs under memo Exhibit 13 and after preparing inquest report which is produced as Exhibit 14 and recording statements of P.Ws. Jial Shah, Miran, Murad under trial prisoner Mehrab and P.C. Muhammad Farhad he then handed over the papers for fun iffier investigation to the S.H.O. Who ultimately challaned the appellant and three others for trial. Formal charge against the appellant and others was framed on 20-1-1985 which was read over to the accused persons, who did not plead guilty. Consequently during the trial prosecution examined following witnesses in support of its case:-- (1)Fide Hussain Exhibit 7, he was examined under section 164, Cr.P.C. Also which statement was produced as Exhibit 8 by him.
6. (2)Muhammad Murad Exhibit 9, Sajawal who acted as Mashir as Exhibit 10, in his evidence he produced the Mashirnama of dead body Exhibit 11, inquest report Exhibit 12 and Exhibit 14, Mashirnama of wardat Exhibit 13, Memo of arrest Exhibit 15 and Memo of recovery of hatchet from the acquitted co-accused Chakar Exhibit 16 and recovery of Lathi from acquitted accused Janib Exhibit 17.
7. (3)Abdul Aziz Tapedar Exhibit 18 who had prepared the sketch and produced by him as Exhibit 19, P.C. Kajaluddin the corpse-bearer as Exhibit 20, Allah Jorio who had investigated the case Exhibit 21 and he produced the F.I.R. Exhibit 21, Jail Shah Exhibit 24, he produced his statement under section 164, Cr.P.C. As Exhibit 25, Miran Exhibit 26, he has also produced his 164, Cr.P.C. Statement as Exhibit 27, Mehrab' Exhibit 28, he was `also examined under section 164, Cr.P.C. Which statement was produced by him as Exhibit 29, Bagan Khan, Head Constable in whose presence Complainant Jamaluddin P.C. Had produced the rifle and a crime empty which was secured by A.S.I. Under a memo Exhibit 30, Doctor Noor Ahmed Exhibit 31 who conducted post--mortem over the body of Nehal, he produced the report as Exhibit 32, also Doctor Abdul Sattar was examined who had conducted the post--mortem over the dead body of deceased Imam Bux Exhibit 33 and produced the report as Exhibit 34, Jamaluddin who is the complainant and in the case was examined at Exhibit 35, Muhammad Ferhat Exhibit 36 who produced the report of the Chemical Analyser which was in respect of blood-stained earth secured during the investigation as Exhibit 37 vide Exhibit 38, Assistant Public Prosecutor Incharge of the case closed his side on 15-9-1987.
8. After the close of prosecution side all the accused facing the trial were examined under section 342, Cr.P.C. Vide Exhibits 39, .40, 41,
42. In their statements accused denied the prosecution allegations and the present appellant Sodho in his statement Exhibit 40 denying the prosecution case submitted that the P.Ws. Have deposed against him because they are hostile to him and interested due to murder of Kehar in which case Mehrab was tried and convicted.
9. The appellant offered himself to be examined on oath under section 340(2), Cr.P.C. And he was cross-examined by the Assistant Public Prosecutor Incharge of the case. In his cross-examination he categorically stated that on the day of incident he was not present with Nehal or other co- accused. He on oath also denied being armed with a gun, he denied the suggestion that he had fired upon deceased Imam Bux sitting m the wagon. Also he denied the suggestion that he committed the offence to retaliate the murder of his nephew Kehar and specifically deposed that it was incorrect to suggest that Jial Shah was sitting in the wagon alongwith deceased Imam Bux. In support of its case prosecution relied upon ocular evidence and the learned trial Judge has based his judgment on the ocular evidence and circumstantial evidence of absconsion by the appellant.
10. Mr. Muhammad Hayat Junejo, Advocate has appeared on behalf of the appellant and he has contended that the ocular evidence produced by the prosecution is of three categories:---
(a) Police Officials,
(b) Relatives of the deceased and the complainant party,
(c) Disinterested witnesses who have not supported the prosecution namely Fida Hussain Exhibit 7, Tonga Driver and Muhammad Murad, the Wagon Driver Exhibit 9.
11. The factum of death has not been disputed and the prosecution in this respect has examined apart froth the P.Ws, the two Doctors namely Dr. Noor Ahmed Exhibit 31 and Doctor Abdul Sattar Exhibit 33. Doctor Noor Ahmed in his statement stated that he was Medical Officer at Taluka Hospital Kashmore on 13-10-1983, he received dead body of Nehal s/o Khamiso from S.H.O. Buxapur and conducted the post-mortem examination during which he found following injuries on the person of deceased Nehal:-- (1)Lacerated punctured wound 2 c.m. x 1 c.m. x through and through over the right thigh at middle anteriorly, margins were inverted appeared to be wound of entrance.
12. (2)Lacerated punctured wound 3 c.m. x 1 c.m. Over the back of right thigh posteriorily below the buttock, with fracture of right pemer, margins were inverted and regular, appeared to be wound of exit.
13. (1)A circular wound 1/2" in diameter on the right side of chest blow right clavicle (wound of exit).
14. (2)A circular wound 1" in diameter on the back of chest of left side near the posterior axillary wall.
15. Blackening of the skin was present around the wound (wound of entrance).
16. On internal examination the damage found by him is also mentioned in the post--mortem report produced by him as Exhibit 34 and in his opinion death was caused due to shock and haemorrhage and the injuries were caused from a fire--arm such as gun. According to him injury No.2 was individually sufficient to cause death and the injury No.2 was corresponding to injury No.1.
17. In his cross--examination he denied the suggestion by stating that the injury could not be caused by standing in front of the deceased but by his side for which he gave reason. In view of the evidence brought on record the factum of death of Imam Bux and Nehal stands proved. While dealing with the ocular evidence we have first taken into consideration the evidence of Fida Hussain the Tanga Driver and Muhammad Murad the Driver of the Wagon in which the incident occurred. It is vehemently argued with sufficient force by the learned counsel for the appellant that the evidence of these two witnesses who are disinterested and natural witnesses but both the witnesses have belied the version of other witnesses. According to Fida Hussain he did not see any person firing at the Wagon nor he saw anybody firing from the Wagon. He also stated on oath that the persons who were present at the wardat had disclosed that a person who was murdered outside the Wagon had committed the murder of Imam Bux and person standing outside was killed by firing from police sitting inside the wagon. According to him during the time he was present at wardat, police did not visit wardat or examine him. He also denied the recording of his statement under section 164, Cr.P.C. He was declared hostile and was cross-examined by the A.P.P.
18. The significant part of his statement on oath is that he stated that P.W. Jial Shah was not present in the Wagon at the time of incident. There is nothing brought in his cross-examination to show that his evidence was unnatural, he has given plausible explanation to be present at the wardat at the time of occurrence. As regards Muhammad Murad we feel he is a material witness being the Wagon driver of the Wagon in which the incident occurred. According to his statement on oath P.W.
19. Jial Shah was known to him and that Jial Shah was not amongst the passengers at the time of incident. While narrating the incident, he stated that while he stopped at Buxapur Bus Stand one person with gun came there` and fired and one of the police constables who was with the under trial prisoner fired at that person who fell down. From his evidence it is clear that it was the person who first fired had received the injury at the hands of police constable which was Nehal. He in his statement on oath stated that he did not see the accused person present in Court available at the wardat at the time of incident. He further stated that it was not correct that appellant Sodho was present amongst the accused persons at wardat and had fired at Imam Bux deceased. For reasons not disclosed this witness was neither declared as hostile nor permission to cross-examine him was sought by the prosecution Advocate i.e. The Assistant Public Prosecutor or the private complainant's counsel as such we do not find any reason to disbelieve or brush aside the evidence of this witness. The next witness whose evidence is challenged by the learned counsel for the appellant is the evidence of P.W. Jial Shah. Admittedly he is Murshid of the complainant party and deceased Imam Bux as admitted by him and as such he cannot be termed as an independent witness. Apart from this there is no plausible reason available in his evidence for his presence at the wardat on the day of occurrence. When it is admitted by him the he had come with Mehrab to attend Court for the first time, there was no special occasion for him to be with the complainant party. The eye-witness account narrated by him appears unnatural and improbable, his evidence is contradictory to the evidence of other witnesses. Consequently we do not feel inclined to hold that his evidence is confidence inspiring for the reason that the other alleged eye--witnesses had given different version. While dealing with the evidence of Meran and Mehrab and complainant Jamaluddin it is clear that it was Nehal who fired the first shot from the gun which hit the wind screen of the Wagon and the passengers ducked down to save their lives as such it appears improbable that P.Ws. Could see the person firing at Imam Bux who was inside the van. P.W. Meran in his statement has stated clearly that the first fire was shot by Nehal which hit wind screen. P.W.
20. Mehrab is admittedly son of the deceased Imam Bux and his case is that the co-accused Meran is his maternal-cousin and Jial Shah was their Murshid. He also admitted that it was Nehal who fired which hit the wind screen of Wagon, and according to him Nehal had fired from the distance of two or three paces away from the wagon from its front which is not the case of the other witnesses alleged to be the eye-witnesses. Complainant Jamaluddin, the police constable stated that all the seats and according to him inside wagon were fully occupied and the driver of the wagon was on Driver's seat when this incident took place whereas the driver Muhammad Murad in his evidence has given totally a different version. His case is that appellant fired from window of the wagon and not as stated by other witnesses that appellant fired from driver's seat. P.W. Muhammad Farhad the police constable said to be present in the wagon has also admitted that after the first fire at that time he was holing hand cuff of the under trial prisoner and Nehal aimed his gun towards wind screen, the complainant Jamaluddin and Mehrab tried to conceal themselves by moving downwards in their seat. On consideration of the evidence of the eye-witnesses we are left with no doubt that the inconsistent and contradictory version coming from the mouth of witnesses creates sufficient doubt so far as factum of use of fire-arms by the assailants is concerned. There is no consistency in the evidence of the eye--witnesses with regard to the occurrence and the police party having admitted causing death of Nehal have tried to exaggerate the incident which has all the more made entire evidence improbable, unconvincing and doubtful, as such implicit reliance on this nature of ocular version cannot be placed. We have also given our anxious thought to the observation of the trial Judge who in his judgment at page 158 has made following observation:-- "there is also strong circumstance of absconsion against accused Sodho, who absconded away after commission of this offence for a sufficiently long time and it indicates his guilty mind."
21. This observation of the learned trial Judge does not get any support from any piece of evidence available on the record. It has been rightly argued by the learned counsel for the appellant that though this circumstance is used against the appellant but no such question was asked from the appellant in his statement under section 342, Cr.P.C. Or in the cross-examination when appellant was examined under section 340 (2), Cr.P.C. In cross-examination. Not only that but prosecution had failed to produce on record any material to show when, under what circumstances and from what place the appellant was arrested by the investigating agency as no memo of arrest of the appellant in the present case is produced by the prosecution.
22. N.H.O,/S-388/K