The above two appeals have been filed by the appellants challenging the judgment passed by the learned Additional Sessions Judge, Kandiaro in Sessions Case No.636 of 1987 whereby they were convicted under section 302, P.P.C. To suffer imprisonment for life and to pay a fine of Rs.10,000 each, in default of payment of fine to suffer two years' R.I. Each and the fine if recovered to be paid to the heirs of the deceased. Since the two appeals arise out of the same judgment I intend to dispose of the same by this common judgment.
2. Briefly the prosecution case is that on 22nd September, 1987 one Ahmed Khan lodged the F.I.R.
With Mohabat Dero Police Station to the effect that on previous day the complainant alongwith his brothers Mian Dad, Bashir, Hamzo and one relative Qamaruddin visited on Pir Bux Nagor for the condolence on the death of his father and after having dinner they all including the said Pir Bux Nagor, slept in his Otak on separate cots. It is said that there is a mosque in the Otak towards the western side and a lantern was burning on the wall of the said mosque. The prosecution case further is that at about 2-00 hours of the night the complainant was awakened on the barking of the dogs and he saw six persons named in F.I.R., who all were standing over the cot of complainant's brother Mian Dad. The complainant identified the said persons on the light of lantern to be Khan and Bashir both armed with guns, Hidayatullah and Gulab both armed with hatchets and Nazar and Khadim both armed with Lathis. The complainant did not raise cries due to fear and within his sight accused Khan fired straight at his brother Mian Dad who woke up crying when accused Gulab and Hidayatullah gave him hatchet blows. On their cries and noise of gun fire Qamaruddin, Hamzo and Pir Bux also woke up who saw the incident. The accused then ran away.
Injured Mian Dad subsequently died and the complainant then after having informed his Nekmard filed the report with the police at 7-45 a.m. The S.H.O. Khair Muhammad Chandio on receiving the report proceeded to the place of occurrence where he prepared the Mashirnama of Wardat in presence of Mashirs Illahi Bux and Muhammad Malook and secured the blood-stained earth and empty used cartridge from the place of Wardat. After preparing the inquest report the dead body was sent for post-mortem. On 30-9-1987 the six accused were arrested. On 4-10-1987 the accused are said to have voluntarily produced the crime weapons whereby accused Bashir is said to have produced his licensed shotgun while accused Hidayatullah and Gulab produced the blood-stained hatchet and accused Nazar Muhammad and Khadim produced Lathis. While nothing was recovered from accused Khan Muhammad. The police after completing the investigation sent up all the six accused to stand trial and the charge was framed under sections 302, 147 and 148, P.P.C.
To which accused pleaded not guilty.
3. In support of the prosecution case they have examined the complainant Ahmed Khan, his brother Hamzo and Pir Bux Nagor to support the occurrence of the incident while Dr. Muhammad Saleh the Medical Officer, Wahid Din the Tapedar and Illahi Bux the Mashir were also examined. The Investigating Officer S.H.O. Khair Muhammad Chandio was also examined. P.W. Qamaruddin was given up and the side of the prosecution was closed. The statement of accused was recorded under section 342, Cr.P.C. Wherein they had denied the allegations and pleaded innocence. 'The learned trial Court finding the present three appellants guilty has sentenced them as aforesaid while the remaining three accused have been acquitted.
4. The first point for consideration is as to whether deceased Mian Dad suffered the death due to alleged injuries. On this point Dr. Muhammad Saleh who performed the post-mortem has been examined and he has stated that the deceased suffered the following injuries:--
(1) Incised wound on the right occipital region 8c.m. x 4 c.m. Cutting the occipital bone. Grievous.
(2) Incised wound from left occipital region cutting the occiptal bone and brain was out at the time of examination.
(3) Incised wound 6 c.m. x 1/1-4 c.m. On the right chest post below the scapular region.
(4) Swellen on the left of maxilla and also on the nose fracturing the nosal bone. Grievous.
(5) Lacerated entrance wound 4/1-2 c.m. On the left lumber region nearly circular in shape.
(6) Lacerated exit wound 2 c.m. x 1 c.m. Below the umbilicus.
(7) Lacerated exit wound 2 c.m. x 1 c.m. On the umbilicus.
In his view the injuries were caused by sharp-cutting weapon, hard blunt substance and by fire- arm and injuries Nos.1 and 2 were sufficient in the ordinary course of nature to cause death. From this evidence which has gone unchallenged it stands proved that the deceased Mian Dad has died on account of the said injuries. But the material point would be as to whether the present accused/appellants caused the said injuries.
5. I have heard the learned counsel for the parties. Mr. S. Madad Ali Shah, learned counsel for the appellant Bashir has argued that this is a case of no ocular evidence and even the circumstantial evidence, if any, does not connect the present appellants with the crime. He has contended that the case mainly depends on the evidence of three P.Ws. Namely the complainant, his brother Hamzo and Pir Bux Nagor who are supposed to be eye-witnesses of the occurrence. He has pointed out to a number of material contradictions in the evidence. He has referred to the F.I.R. First wherein according to the complainant it was accused Khan who fired at deceased Mian Dad and not accused Mashir. The first information report also shows that all the remaining four accused armed with hatchet and Lathis had given blows to the deceased, In F.I.R. According to complainant he remained quiet out of fear and that Hamzo and others were awakened on the cries of Mian Dad and saw the incident. As against this he has referred to the deposition of the complainant recorded in this Court wherein he states that the appellant Bashir fired at his brother Mian Dad while appellants Hidayatullah and Gulab gave him hatchet blows. He does not say anything about the other co-accused in his deposition, obviously with the intention to protect them as they are his relatives. It is also pointed out that in Court the complainant has identified only the present three appellants but is silent with regard to the other three co-accused. Then learned counsel has referred to the deposition of P.W. Hamzo the brother of the complainant and deceased who has also named only the present three applicants in his deposition in Court and does not say anything with regard to the remaining three co-accused. P.W. Hamzo in his cross-examination admits that co-accused Khan, Nazar Muhammad and Khadim are their relatives. The other material point referred to by the learned counsel is that the complainant Ahmed Khan in his deposition has stated that he raised cries after the accused had gone away from the Wardat and that it was on his cries that P.Ws. Hamzo, Qamaruddin and other villagers came at the Wardat. Therefore, the learned counsel has argued that the other witnesses who came after the accused had left the place of occurrence cannot be said to have seen the accused giving fatal, blows to the deceased.
The learned counsel has then referred to the evidence', given by the P.W. Pir Bux Nagor who has specifically said that he did not identify the accused and that the injuries were given to the deceased Mian Dad before he woke up. According to the learned counsel this witness also cannot be said to have corroborated the evidence of complainant on the point of fatal blows being administered by the present appellants. The learned counsel has further argued that on this very evidence the remaining co-accused have been acquitted and this evidence therefore, cannot be relied upon to convict the present appellants in absence of very strong and independent corroborating evidence. He has placed reliance on the cases of Ghulam Sikandar and another v.
Mamaraz Khan and others PLD 1985 SC 11, Sattaro v. The State PLD 1988 Kar. 350 and Rashid Ahmed v. The State PLD 1976 Kar. 438.
6. The next point taken up by the learned counsel is with regard to the identification of the accused which is said to have been on the lantern and torch. He has drawn my attention to the deposition of Tapedar Wahid Din who has also prepared the sketch of place of occurrence. It is pointed out that there is no mention of lantern either in his deposition or in the said sketch and also that no such lantern or torch was recovered by the police or produced in the evidence in Court. He has submitted that from this it would be inferred that there was no lantern burning at the spot at the relevant time. He has placed reliance on the case of Ghulam Rasool and another v. The State PLD 1983 Lah.
195. He has also contended that such identification is unreliable as admittedly it was a dark night when the said occurrence is said to have taken place. He has placed reliance on the cases of Thangai alias Rifle alias Abdul Ghafoor v- The State 1983 P Cr. L J 1227, Hamzo and another v. The State 1983 P Cr. L J 892 and Ali Nawaz and another v. The State 1988 P Cr. L J 1736.
7. The next contention of the learned counsel is that according to the prosecution one empty cartridge was recovered from the place of occurrence and also that appellant Bashir had produced his licensed gun but the same were not sent to Ballistic Expert for examination. From this he has argued that said empty cartridge has not been shown to have been fired from the gun of the present appellant Bashir and, therefore, the said gun cannot be said to be connected with the crime. He has placed reliance on the case of Bohran v. The State 1987 P Cr. L J 1617. Summing up his contention Mr. S. Madad Al Shah, learned counsel for appellant Bashir has submitted that one piece o tainted evidence cannot be corroborated by another piece of tainted evidence He has further contended that in case where the prosecution has failed tc produce the unimpeachable evidence to connect accused with the crime, the accused is entitled to benefit of doubt. He has placed reliance on above-cited cases of Thangai and Hamzo. In order to support his above contentions the learned counsel has referred to the evidence of the investigating officer S.H.O, Khair Muhammad Chandio who in the very last line of cross-examination has stated that `It is correct that nowhere in the F.I.R. Is mentioned that accused Bashir fired at deceased Mian Dad, so also no witness had stated so in his 161, Cr.P.C. Statement---.
8. Mr. Abdul Ghani Memon, learned counsel for the appellants Hidayatullah and Gulab in above Appeal No.57 of 1988, adopting the arguments of Mr. S. Madad Ali Shah has further contended that it has been admitted that father of Pir Bux had died about 7/8 months prior to the date of occurrence and during this period the complainant party had met Pir Bux 2/3 times in Kandiaro, it is, therefore, not explained as to why the complainant party had then gone for condolence after such delay which is quite unusual as normally in the circumstances should have gone at the earliest when the parties are family friends. The learned counsel has further submitted that admittedly in the present case the incident had taken place on 22-9-1987 while the accused were arrested on 30-9-1987 and the recovery was made on 4-10-1987 i.e. 12 days after the occurrence and therefore, such recovery has no evidentiary value. He has placed reliance on the case of Muhamamd Tasnim v. The State 1985 SCMR 160. He has further contended that the conduct of the complainant and P.W. Hamzo in the present case is obviously quite strange as they have been trying to suppress the true facts which is clear from their evidence wherein they are trying to protect the three co-accused, who have been acquitted, by not saying anything pertaining to them whereas their names had been mentioned in the F.I.R. According to learned counsel such evidence has no value and the allegation that blood-stained hatchets were recovered from the appellants Hidayatullah and Gulab would also lose their evidentiary value since no other independent corroborative evidence is brought on record. Reliance is placed on the case of Saifullah v. The State 1985 SCMR 410.
9. From the above discussion it can safely be assumed that the prosecution has failed to prove their case against the present appellants beyond any reasonable doubt. I, therefore, giving benefit of doubt to the appellants, accept their appeals and set aside the conviction and sentences. The appellants shall be released forthwith unless required in any case.