This judgment will dispose of Criminal Appeal No.201 of 1982 and Criminal Appeal No.202 of 1982. In Criminal Appeal No.201 of 1982, there are four appellants namely Abdul -Hamid, Anwar Ali and Barkat Ali, all sons of Mahboobullah; and Mukhtar Ahmad son of Ghori. The four appellants had been convicted by the learned Sessions Judge, Thatta, in Sessions Case No.9 of 1980, by his judgment, dated 28-11-1982. Appellant Abdul Hamid had been convicted under sections 302 and 504, P.P.C. And sentenced under section 302, P.P.C. To life imprisonment and a fine of Rs.5,000 or in default of payment of fine to undergo R.I. For six months. Under section 504, P.P.C. Abdul Hamid had been sentenced to undergo R.I. For one year. Besides the fine, appellant Abdul Hamid had also been ordered to pay compensation of Rs.5,000 to the heirs of the deceased or in default of payment of compensation he had been ordered to undergo R.I. For six months more. Appellants Nos.2, 3 and 4, namely Anwar Ali, Barkat Ali and Mukhtar Ahmad had been convicted under section 504 read with section 34, P.P.C. And sentenced to undergo R.I. For one year each.
Criminal Appeal No.202 of 1982 had been filed by Abdul Hamid son of Mahboobullah. Who had been convicted under section 13-D of the Arms Ordinance, 1965, and sentenced to undergo R.I. For two years by judgment, dated 28-11-1982, in Sessions Case No.10 of 1980. I have heard Mr. Raja Qureshi, learned counsel for the appellants and Mr. S. Murtaza Hussain, learned counsel for the State.
2. The deceased in this case is Abdullah, brother of the complainant, Ali Muhammad. The incident is supposed to have taken place on 24-2-1980 at 2-30 p.m. On the Western bank of Indus River at a distance of about 5 miles to the North-East of Police Station Ghora Bari, District Thatta. The F.I.R., which was lodged by complainant, Ali Muhammad, at 3-30 p.m. On the same day, is as under:-- "I, my brother Abdullah alias Billa, my father Aaroo, cousin Aboo Bakar son of Osman are doing fishing work with fishing nets. Today our boats were parked at the bankof Indus River. I, brother Abdullah alias Billa,
3. Aboo Bakar son of Osman,
4. Father Aaroo were preparing the fishing nets together at the bank of river in De h Sanawalpur. Today at about 2-00 p.m. Abdul Hamid alias Karo son of Mehboobullah duly armed with a .12 bore gun,
2. Anwar son of Mehboobullah,
3. Barkat son of Mehboobullah 4. Mukhtar son of Ghori all by cast Shaikh who were empty-handed came to us near the river. They told us that we should get them the river crossed as they will go for hunting. Upon this my brother Abdullah alias Billa told the above accused that they should wait and that we will get them the river crossed after preparing the fishing nets. Upon this all the accused abused and asked us to get them the river crossed very soon. Upon this we told them not to abuse and not to make haste. Upon this accused Abdul Hameed alias Karo armed the gun with which he was armed and fired a direct shot at my brother, Abdullah alias Billa. My brother on receiving gun-shot raised a cry bleeding. We raised cries, whereupon, the accused ran away towards North. We saw our brother Abdullah alias Billa and found him to be dead on receiving gun-shot. He had received a gun-shot a little above his nipple. Thereafter, many people came running there. Thereafter, I after leaving father Aaroo, cousin Aboo Bakar and others at the place of occurrence in charge of the dead body, have come here to lodge report. I lodge report that above accused persons, having conspired among themselves, have attacked and murdered my brother Abdullah alias Billa.
Justice be done."
Three eye-witnesses were examined by the prosecution, namely P.W.2 complainant Ali Muhammad (brother of the deceased), P.W.3 Aaroo (father of the deceased) and P.W.4 Aboo Bakar (cousin of deceased). One empty cartridge was recovered from the scene of incident and on the same day after arrest of the accused, the appellant Abdul Hamid produced a gun. Ballistic Expert's opinion was obtained and the report is available on the record.
(a) Penal Code (XLV of 1860)--- ----Ss. 302 & 504---Appreciation of evidence---Eye-witnesses were found to be present on the spot at the time of incident---All material particulars had been given in the F.I.R.---Recovery of crime gun from accused had been proved and the crime-empty recovered from the scene of incident was found to have been fired from the said gun---Ocular evidence was not in conflict with medical evidence---Convictions and sentences of accused were maintained in circumstances.
(b) Penal Code (XLV of 1860)--- ----S. 504/34---Appreciation of evidence---Accused were neither armed nor any action was attributed to them---Common intention to commit any crime could not be safely attributed to accused on the evidence present on record----Accused were acquitted accordingly.
(c) West Pakistan Arms Ordinance (XX of 1965)--- ----S. 13-D---Appreciation of evidence---Recovery evidence had fully proved the case against accused---Conviction and sentence of accused were consequently maintained.
Raja Qureshi for Appellants.
S. Murtaza Hussain for the State.
Dates of hearing: 5th and 6th November, 1984,