' JAMALUDDIN H. AHMAD, J.-Appellant Haji Ghulam Hussain alias Sharbat Khan was tried for the murder of Soomar, convicted under section 302, P. P. C. And sentenced to imprisonment for, life.
Five other persons, namely, Shah Jahan, Muhammad Amin, Fazal Hameed, Nawab and Mohaboat Shah were also tried with him but they were all given benefit of doubt and acquitted by the Sessions Judge, Thatta, vide his judgment dated 25-9-74. The appellant has now appealed against his conviction.
2. The deceased Soomar and his other relations P. Ws. Adam, Saleh son of Adam and Sakhi were all harts on the land of one Bashir Ahmad Khan Pathan, in Deh Kherani, where they had their village since long. Complainant Jeeand was also related to them and lived in the same village but he cultivated land of one Pir Muhammad Baloach. At a distance of 1 miles from this village there was the land of one Muhammad Ibrahim Pathan and the appellant was his "Am Mukhtiar". The lands of Bashir Ahmed Pathan and of Muhammad Ibrahim Pathan got their supply of water from the same watercourse. At the instance of Bashir Ahmad Khan, the prosecution witnesses had installed a pipe of 4' diameter in the above said watercourse at a distance of hundred paces from their village. The appellant did not approve of this action. Furthermore the complainant and his relatives including the deceased had applied to the Government for Permanent Grant of land, being harts, and had thus incurred further displeasure of the appellant and others. They were therefore threatened to migrate from this land ; and the complainant had told Haji Sharbat Khan that he had no right to say so, as they were haris and old residents of the village. On 13-12-1972 at about 10.00 a.m. The appellant Ghulam Hussain alongwith Muhammad Amin, Fazal Hameed, Shah Jahan, and others, came to the spot where the pipe was fixed. The appellant asked his companions to remove the pipe. Deceased Soomar reached the place and persuaded them not to do so, as the water course being dry, its removal was quite unnecessary; moreover he suggested that this matter could be settled in the community. The appellant who was armed with a double barrel gun and a revolver, took out the same and fired at Soomar, who died on the spot. On hearing the fire shots complainant Jeeand, P. Ws. Saleh, Adam and Sakhi the brother of deceased Soomar came out running from their houses and challenged the Pathans who fired at them also. Consequently Saleh received a revolver bullet injury in the stomach and fell down. P. Ws. Adam and Sakhi also received blows, with belchas. Jumo, Sathio, Aachoo, Gado and others came running from the neighbourhood, whereupon they all ran away, but in so doing the appellant left his revolver and gun on the spot. Leaving the family and other village people near the dead body, complainant Jeeand took the injured witnesses with him and lodged the F. I. R. At Gharo Police Station at 15-45 hours on the same day.
3. S. H.
0. Irshad Ali, who recorded the F. I. R. Exh. 6, also recorded the statements of the injured witnesses, Saleh, Sakhi and Adam. The appellant was also present at the Police Station as he had lodged the counter F.
1. It. Of the same incident at 1-00 p.m. The S. H.
0. Arrested the appellant there, and sent the three injured persons to the hospital at Thatta. He then took the appellant and complainant Jeeand to the wardat which was at a distance of 8 to 10 miles from Gharo Police Station. The dead body of Soomar was lying about 20 paces away from the watercourse on the bank of which a pipe about 4' in diameter was also lying and the same appeared to have been removed. A revolver and a double barrel gun were lying near the dead body at 10 to 15 paces from it. There was blood on the ground, under the dead body as well as at a place about 20 paces to its south. The S. H. O. Seized the blood from both the places. In the double barrel gun there was one used empty cartridge, while in the chamber of the revolver there were six used shells. The revolver and the gun along with the cartridges and the shells were all seized by the S. H 0. And were sealed. Besides the above, two fired bullets of the revolver, were found lying on the ground about 8 ft. Away from the dead body, which were also sealed. He also secured one black- shoe belonging to the deceased which was lying in the bed of the watercourse besides a chappal which was said to be of the accused and was at a distance of about 15 to 20 paces away from the dead body. The mashirnama of vardat and seizure Exh. 17 was prepared in presence of mzshir Pir Muhammad and Karim Bux. The S. H.
0. Then sent the dead body for postmortem examination and then proceeded to the village of Noor Muhammad Pathan where he found acquitted accused Shah Jehan, Muhammad Amin and Fazal Hameed lying injured who were all arrested and sent to the hospital. The appellant had injuries on the ear and at the shoulder and only the cap on his head was cut without any visible head injury.
On 14-10-72 Nawab was arrested and his house searched. On 17-12-72 he recorded statements of P.
W. Jumo and Aachu who made their statement under section 164, Cr. P. C. On the following day. On 25.12-72 he searched the houses of Fazal Hameed and Muhammad Amin. One belcha was secured from the house of Fazal Hameed while one spade, from the house of Muhammad Amin. These had no blood stains on them. The final challan of the case was submitted on 15-2-73. The blood- stained earth and clothes of the deceased, were sent to the Chemical Analyser, whose report Exh.
25 showed that they were all stained with human blood. He had sent the gun, the revolver etc. To the Ballistic Expert, but had not received any report.. In the trial a'so the Ballistic Expert's opinion was not proved.
4. The appellant Haji Ghulam Hussain alias Sharbat Khan had filed his report which was recorded 45 minutes earlier than the report of complainant Jeeand at the same police station, but this was not produced at the trial.
' In his statement under section 342, Cr. P. C. He denied having formed an unlawful assembly with the others for removing the water pipe and/or to cause death and injuries to the prosecution witnesses. He denied that the death of deceased Soomar or the injuries to Adam, Sakhi and Saleh were caused by them. He even denied having fired the revolver at the deceased Soomar or having caused any injuries to P. W. Saleh. His case was that he had been arrested at the Gharo Police Station where he had gone to lodge his report. According to him he and his guest Shah Jehan had gone to their lands on 12-12-1972 and on the following day had sent Muhammad Amin and Fazal Hameed to clean the watercourse which had been dug at the cost of his Zamindar Muhammad Ibrahim for which he produced the order of the Engineer dated 1-5-69 as Exh.
31. At about 10-00 a.m. That day while he and Shah Jehan were going to Karachi, they visited the place where the two labourers fazal Hameed and Muhammad Amin were working. At that place water pipe 4" in diameter had been unauthorisedly fixed by the complainant party. On reaching there he found P. W. Adam whom he asked to remove the pipe. The latter was indifferent and went away to his village. He then gave a direction to Fazal Hameed and Muhammad Amin to remove the pipe, whereafter 15 to 20 persona armed with lathis and hatchets came and challenged them and attacke I them. Adam, Sakhi, Soomar deceased, Saleh, Jeeand. Ibrahim and Mukhtiar were amongst them. Saleh and Jeeand gave hatchet blows to him on his head and ear. Although he was armed with his licened gun and revolver, these weapons fell on the ground and he went away to save his life. He denied to have fired from his weapons. He found some persons at the Jheel
(lake) who had a car whom he requested for a lift and he was brought to Gharo by those persons whereafter he filed his first information report.
6. Dr. Muhammad Arab, Medical Officer, Thatta, examined the injured and held the post-mortem examination of the dead body of deceased Soomar. He found the following injuries.
' Deceased Soomar :
(1) Penetrating contused wound "P' size with black margins inverted in the middle sternum middle line.
(2) Wound of exit, penetrating contused wound with sides everted at the back of chest left lower margin of left scapula.
(3) Penetrating contused wound 'P' size at left scapula lateral margin middle.
(4) Penetrating contused wound at the left side of chest upper 1/3rd of front of chest.
(5) Penetrating contused wound at the upper 1/3rd of right forearm near elbow-joint.
' In the opinion of the doctor the injuries appeared to have been caused by discharge of a firearm that hit the vital organs of the body. The cause of death according to him was the injury to heart by external injury No. 1.
' Saleh son of Adam :
(1) Penetrating contused wound skins deep 'P' size with no black marks on margin on abdomen at epigastric area.
(2) Swelling about 11" x 1/4" at the back of left elbow.
(3) Swelling at right elbow.
(4) Incised wound 11" x 1/4" on the occipital area.
(5) Abrasion long on the back of left shoulder.
' In the opinion of the doctor injury No, 4 was grievous in nature and appeared to have been caused by some sharp object and rest were simple and caused by some object. The injuries were caused within 12 hours at the time of examination.
' Adam son of Jiand :
(1) Incised wound 31" x 1" skin deep on back of left shoulder.
(2) Swelling 3" x 2" on back of chest left side.
' The injuries were caused by sharp object while injury No, 2 was by some blunt object.
' Sakhi son of Ibrahim :
(1) Incised wound 1' x 1/4' skin deep on the left eye brow.
(2) Incised wound 1/2' x 1/4' skin deep at 1/4" at the lateral side of injury No. 1.
(3) Incised wound 1/2" x 1/4" x skin deep front of right elbow-joint. The injuries Nos. 1 and 2 were caused by some sharp object whereas it jury No, 3 was caused by a blunt object.
8. At the request of the counsel for the appellant the medical officer was examined in this Court on 28th January, 1976 because he had not stated anything about the type of the firearm used in the case of the injured. About injuries on deceased Soomar he stated as under : "I see Exh. 10-A, which is the post-mortem report of deceased Muhammad Soomar. Injuries 1 to 5, in my opinion, were caused by pellets of a shot gun. The range of the fire-arm would be within 12 feet.
The injuries could be the result of two shots. Injuries Nos. 3 and 4 are the result of one shot. Injury No, 4 is the entry wound while injury No, 3 is the exit wound."
9. As the Ballistic Expert was not examined in the Court below and had been given up by the prosecution he was also examined in this Court and he stated that he received 5 sealed parcels on 9-2-73 from S. P., Thatta which were opened by him on 12-5-73. The first parcel contained one D. B.
B. L. Shot gun of .12 bore No, 823. The second parcel contained one revolver No, 5049 B. B. Of .32 bore. The third parcel contained six crime empties of .32 bore. The fourth parcel contained two crime bullets of 32 bore and the fifth parcel contained one crime empty of .12 bore. He held the usual tests and in his opinion, the crime empty of .12 bore which he had marked C-7 had not been fired from the right barrel of the gun. About the left barrel he said that it had misfired and as such no test empty could be produced from it for comparison with the crime empty C-7. So far as the six crime empties of .32 bore, his opinion was that the same had not been fired from the revolver No, 5049 B. B.
10. Now at the trial complainant hand and the other witnesses of the incident i,e, Adam, Saleh, Sakhi and Aachu had all deposed that the appellant had fired 5 shots at deceased Soomar with his revolver. It was further alleged that he had injured witness Saleh also by firing one shot at him but none of the said witnesses said that the appellant ever used his gun. In fact it was the case of the prosecution that Shah Jehan, the acquitted accused had used his double barrel gun. Even that piece of evidence was disbelieved by the trial Court as an exaggeration because this was not the case set up in the First Information Report. Shah Jehan who was said to have used the gun was therefor e given benefit of doubt and acquitted.
11. The trial Court believed ocular evidence of the above stated witnesses against appellant Haji Ghulam Hussain and said in paragraph 25 of the judgment, "the prosecution version that accused Ghulam Hussain fired at Soomar gets corroboration from the statement of accused himself who admits to have been armed with fire-weapons. The denial of accused Ghulam Hussain that he did not fire the revolver is of no avail to him. Circumstances do not suggest that anyone else had fired from the revolver at the deceased." Thus even the trial Court based the conviction of the appellant on the evidence that deceased Soomar was given injuries with a revolver.
12. The contention that the Ballistic Expert was not examined by the prosecution, was not considered by the trial Court, on the sole ground that the District Public Prosecutor had said in his arguments that the Expert's Report was not honest. It was stated, "since the prosecution alleges dishonesty in the Expert's opinion and as the opinion is not proved on record. I would not consider this aspect of the case at all. Even otherwise there is sufficient reliable evidence to conclude that the revolver was fired by accused Ghulam Hussain."
' Now that the evidence of the Ballistic Expert Is on the record It is understandable why the Prosecutor had suppressed it. The Prosecutor in all fairness, should have brought this important piece of evidence on the record, and if he thought it was dishonest or that there was any foul play in obtaining the same he should have placed those facts also for the consideration of the Court. It was not proper for the Prosecutor to have kept back a piece of evidence from judicial scrutiny merely on the basis of his own opinion. It was for the trial Court to judge whether the opinion was honest or not and if the Prosecutor chose not to examine any evidence, without laying any foundation for its being discreditable, he had to run the risk of an adverse inference being drawn by the Court.
13. After examining the medical evidence it is clear that the injuries on deceased Muhammad Soomar were caused by pellets of a shot gun. These were not caused by firing from the revolver.
This evidence of the Medical Officer is in perfect conformity with the opinion of the Ballistic Expert, according to whom the revolver secured in the case had not been used at all. The evidence of the witnesses who said that they saw the appellant firing with the revolver at the deceased Soomar or for that matter even at injured Saleh is completely belied. In view of this conflicting evidence it is not possible to place reliance on the evidence of these witnesses as it does not seem to be corroborated by any circumstances appearing in the case.
' In view of this state of evidence the appellant is entitled to benefit of doubt. His appeal is, therefore, allowed and his conviction is set aside.
' MUHAMMAD HALEEM, J.-I agree.