1. ABDUL RAHIM KAZI, J.---This appeal has been filed challenging the judgment passed and sentence awarded by the Judge, Special Court for Suppression of Terrorist Activities, Larkana whereby the present appellants were convicted under sections 302, 114 and 34, P.P.C. And were sentenced to suffer life imprisonment and further to pay a fine of Rs.50,000 each or in default to suffer R.I. For three years more.
2. Briefly the facts are that on 9-3-1992 complainant Muhammad Amin Jiskani lodged F.I.R. At Police Station Veehar, District Larkana at 9-3p a.m. Which was registered vide Crime No.3 of 1992. The complainant in his F.I.R. Alleged that he alongwith his son A.I Bux (deceased) and P.Ws. Haji and Talib Hussain left their houses for collecting fodder for cattle from fields on that day early in the morning. It is further alleged that when they reached near the houses of accused persons beside a Mango garden they were confronted by the present accused carrying a shot-gun each including absconder Allah Rakhio, who was armed with a KK. The complainant further said that it was 6-30 a.m. Time and the accused shouted at them particularly at A.I Bux who was going ahead of others, stating that they had restrained him from passing by near the house of accused but A.I Bux failed to do so, therefore, they will kill him. It is alleged that the accused instigated absconder Allah Rakhio who opened fire with his KK upon A.I Bux and then these accused also fired upon A.I Bux with their respective guns, causing injuries to A.I Bux, who consequently fell down and accused alongwith absconder Allah Rakhio made their escape good raising slogans. It is alleged that the complainant went over his son A.I Bux who was found bleeding and dead, therefore, complainant leaving others over dead body proceeded to police station and lodged report.
3. After recording the F.I.R. H.C. Deedar A.I accompanied the complainant to the place of incident where he inspected the scene of offence and prepared the Mashirnama in presence of Mashirs, secured empties c4 cartridges and Klashnikov bullets alongwith the blood-stained earth and held inquest on the person of deceased A.I Bux. The dead body was sent to Hospital for post-mortem.
4. Thereafter the S.H.O., Faqir Muhammad who arrived at Wardat took-over further investigation. The three appellants were arrested on 30-3-1992 at 3-15 p.m. Near their houses under the Mashirnama and were finally sent up on 7-7-1992 to stand trial. The fourth accused Allah Rakhio was shown as absconding and was ultimately so declared. The charge was framed against the appellants under section 302 read with sections 114 and 34, P.P.C. On 18-3-1993 to which they pleaded not guilty and the case was set for trial.
5. The prosecution examined eight witnesses and thereafter the learned A.A.P. Closed his side.
6. Statement of accused was recorded under section 342."Cr.P.C. Who denied the allegations made against them. The accused alleged enmity with the complainant party. The accused did not examine themselves on, oath nor they examined any witnesses in defence although chance was give: The accused produced certain photostat copies of applications moved by the relative Abdul Lateef Kalhoro to higher authorities of Police Department implicating the relatives of the complainant party in criminal cases and also produced copies of F.I.Rs. Showing the complainant party as accused. On the basis of the above evidence the trial Court settled the following points for determination and after hearing the arguments was pleased to pass the impugned judgment convicting the appellant as above:-- POINT NO.1: "Whether A.I Bux son of Muhammad Amin was killed by causing him fire-arm injuries on the day of incident?
7. POINT NO.2: Whether the accused alongwith absconder Allah Rakhio instigated each other with their common intention to commit murder/qatl-i-amd of A.I Bux (deceased)?
8. POINT NO.3: Whether the accused are guilty of offence charged against them?"
9. We have heard Mr. Nooruddin Sarki, learned counsel for the appellant. He has pointed out that the trial Court has based its conclusions on the following evidence:
(a) Medical Evidence;
(b) Evidence of Recovery and
(c) Ocular Evidence.
(a) MEDICAL EVIDENCE: The medical evidence comprises of the deposition of the Medical Officer, Dr. Irshad Hussain, who has been examined as Exh.11 and has produced the post-mortem report. According to the evidence of the Medical Officer the deceased had suffered five injuries being wounds of entry and five wounds of exit. The Medical Officer opined that all the injuries were anti---mortem and were caused by the discharge from fire-arm such as rifle. This fact, however, is not disputed. But the question is as to whether the present appellants are involved in causing the death of said A.I Bux.
10. The emphasis by the learned counsel for the appellants is that all the injuries caused to the deceased are the result of bullet injuries having been fired from a rifle and there is no injury sustained by the deceased which could be said to have been caused by impact of pellets of short guns' cartridges.
(b) RECOVERY EVIDENCE: According to the Mashirnama of Wardat, Police had recovered seven empties of Klashnikov and eleven empty cartridges. It is admitted that no guns were recovered from the present appellants.
11. The prosecution has thus failed to connect the recovery of the empty cartridges with the present appellants.
(c) OCULAR EVIDENCE: This is the most important piece of evidence in the case. The complainant Muhammad Amin Jiskani in his deposition has stated that when the complainant party reached near the house of Allah Rakhio, the absconding accused, they were confronted by present appellants and Allah Rakhio. Allah Rakhio was armed with a Klashnikov while the appellants were carrying shot--guns.
12. According to the complainant as stated in his examination-in-chief Allah Rakhio gave a Lalka'ra to deceased A.I Bux to the effect that why he was passing through the garden and near their houses when he was warned not to come through and on this other accused instigated the said Allah Rakhio, who opened fire with his Klashnikov hitting the deceased A.I Bux with the result that he fell down. The complainant further stated that the present appellants fired at the complainant party and also in the air and threatened them not to interfere. The appellants are then stated to have run away while firing in the air. As against this he has admitted in his cross-examination that "I have not stated in my FIR that other accused instigated Allah Rakhio to finish A.I Bux. It is correct that I have not stated in FIR that other accused fired on us. It is correct that I have not stated in my FIR that the culprits threatened not to intervene".
13. A plain reading of the F.I.R. Would confirm the above facts. All that is stated in the F.I.R. Is that the present appellants ran away firing in the air. Except this no other overt act is attributed to the present appellants. Thus, it is clear that the fatal injury to the deceased was caused by absconding accused Allah Rakhio and not the present appellants. Now the point requires consideration whether sections 114, P.P.C. And 34, P.P.C. Are attracted to the present case. Section 114, P.P.C. Reads as under:--- "114. Abettor present when offence is committed.---Whenever any person, who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence."
14. There is no allegation of abetment in the present case and the learned A.A.-G. Has also conceded that the section 114, P.P.C. Is not attracted to the present case. Now we come to the section 34, P.P.C.
15. Which reads as under:--- "34. Acts done by several persons in furtherance of common intention:---When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone."
16. It may also be observed that in the present case while the complainant Muhammad Amin Jiskani was being cross-examined, he was reluctant to reply to the questions posed to him by Mr. Noorullah Unar, Advocate for the accused Muhammad alias Zulfiqar and that for this reason the Court had adjourned the case. Such note has also been made in the cross-examination of the complainant at page 20 of the Paper Book which reads as under:--- "Note.---The witness has taken five minutes at least to reply each question of learned DA. (Note.-- -The witness is now reluctant to give reply of any of the question of the learned DA., therefore, the case is adjourned to some other date):"
17. The above fact gives rise to inference not only against the complainant but also shows that conduct of the Presiding Judge against the accused.
18. Above are the reasons for the short order announced in Court on 22-8-1994.