JUDGMENT 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 Section 302, 114 and 34 PPC and were sentenced to suffer life imprisonment and further to pay a fine of Rs. 50,000.00 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 9.30 a.m. Which was registered vide crime No.3 of 1992. The complainant in his F.I.R, alleged that he alongwith his son Ali Bux (deceased) and P.Ws: Haji and Talib Hussan 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 besides 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 Ali Bux who was going ahead of others, stating that they had restrained him from passing-by near the house of accused but Ali 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 Ali Bux and then these accused also fired upon Ali Bux with their respective guns, causing injuries to Ali Bux, who consequently fell down and accused alongwith absconder Allah Bakkio made their escape good raising slogans. It is alleged that the complainant went over his son Ali 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 Ali accompanied the complainant to the place of incident where he inspected the scene of offence and prepared the mashimama in presence of mashirs, secured empties of cartridges and kalashnikov bullets alongwith the blood stained earth and held inquest on the person of deceased Ali Bux. The dead-body was sent to hospital for post-mortem.
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 upon 7.7.92 to stand trial. The fourth accuse^ Allah Rakhio was shown as absconding and was ultimately so declared. The charge was framed against the appellants under section 302, read with Section 114 and 34 P.P.C, on 18.3.1993 to which they pleaded not guilty and the case was set for trial.
4. The prosecution examined eight witnesses and thereafter the learned A.A.P. Closed his side.
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 witness in defence although chance was given. The accused produced certain photostat copies of applications moved by their 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 Ali Bux son of Muhammad Amin was. Killed by causing him fire Arm injuries on the day of incident?
POINT NO. 2 Whether the accused alongwith absconder Allah Rakkio instigated each other with their common intention to commit murder/qatl-i-and of Ali Bux (deceased)?
POINT NO 3. Whether the accused are guilty of offence charged against them?"
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:
5. The medical evidence comprises of the deposition of the Medical Officer, Dr. Irshad Hussan, who has been examined as Ex. 11 and has produced the postmortem 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 discharged 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 Ali Bux. 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 shot guns' cartridges.
(b) RECOVERY EVIDENCE: According to the mashimama of wardat, Police had recovered seven empties of Kalashnikov and eleven empty cartridges. It is admitted that no guns were recovered from the present appellants.
The prosecution has thus failed to connect the recovery of the empty cartridges with the present appellants.
(c) OCULAR EVIDENCE
6. 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 klashinkov while the appellants were carrying shot guns.
According to the complainant as stated in his examination-in-chief Allah Rakhi gave a Lalkara to deceased Ali 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 Rakhin, who opened fire with his klashnikov hitting the deceased Ali 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 runaway while firing in the air. As against this he is admitted in the cross-examination that "I have not stated in my FIR that other accused instigated Allah Rakhio to finish Ali 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."
7. A plain reading of the F.I.R, would confirm the above facts. All that 1's stated in the FIR is that the present appellants runaway firing in the air. Except this is no other overt act is attributed to the present appellants. Thus, it is clear that the fetal injury to the deceased was caused by absconding accused Allah Rakhio and not the present appellants. Now the point requires consideration whether Sections 114 PPC and 34 PPC are attracted to the present case. Section 114 PPC 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."
There is no allegation of abetment in the present case and the learned A.A.G, has also conceded that the Section 114 PPC is not attracted to the, present case. Now we come to the section 34 PPC 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."
8. In order to attract the provisions of Section 34 PPC it has to be shown that all the persons involved had the common intention and that alleged act was committed by any of the persons in furtherance of the common intention. In the present case there is no evidence brought by the prosecution to show the common intention or any premeditation or that the appellants and the absconding co- accused had made prior preparations for causing the death of deceased Ali Bux.
It is not shown if the present complainant party had been going through the said route at the given time almost daily nor it has been brought on record to show if the accused party had prior knowledge of the complainant party passing by the said route at the time the occurrence took place. A incident is said to have taken place at 6.30 a.m. Which in the month of March is hardly the time of sun-rise and the appellants and co-accused are sitting in their houses when the complainant party is said to have passed by their houses on which the absconding co-accused Allah Rakhio has challenged the deceased as to why he had come by their houses when he was warned not to do so. All this shows that the incident had taken place on the spur of moment and in that case the provisions of Section 34 PPC would not be attracted. The learned counsel for the appellants had pointed out that the complainant in his FIR has not implicated the present appellants as no overt act has been attributed to them but all that is alleged against them is that they fired in the air while running away. As regards the other witnesses the two eye-witnesses namely, Haji and Talib Hussan also said that the present appellants had only fired in the air. These witnesses are admittedly related to the complainant and deceased as PW Haji is maternal uncle of deceased while PW Talib Hussan is the nephew of complainant. It is also admitted by these witnesses that one Abdul Lateef Kalhoro a relative of the accused party had been .Moving applications against the relatives of the complainant and PWs. This according to the learned counsel shows that there had been enmity between the parties and that it was for this reason that the present appellants have been involved in the instant case. In view of above discussions we have no hesitation in holding that the provisions of Section 34 PPC would not be attracted to the present case.
9. It may also be observed that in the present case while the complainant Muhammad Amin Kiskani 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 D.A. (Note: The witness is now reluctant to give reply of any pf the questions of the learned DA, therefore, the case is adjourned to some other date)".
The above fact gives rise to inference not only against the complainant but also shows the counsel of the Presiding Judge against the accused.
10. In this view of the matter we accept this appeal, set aside the impugned judgment of the trial court and the sentence awarded to the appellants. Appellants shall be released forthwith if not required in any other case.
Above are the reasons for the short order announced in court on 22.8.1994.