1. MAHMUD, J.-The appellants before us (1) Jan Muhammad, (2) Ahmed Bux (3), Moharam, (4)
1. Khamiso, and (5) Malook along with acquitted accused Muhammad Abbas, Allandino, Moula Bux and Ghulam Asghar were tried by the Additional Sessions Judge, Larkana who, by his judgment dated 1-9-1976 convicted appellant Jan Muhammad under section 302, P. P. C. Fot the murder of List. Bachul and sentenced him to death. He along with the other four appellants have been convicted under section 524, P. P. C. (house-trespass after preparation to commit offence) and sentenced to undergo R. I. For one year respectively. The other appellants have also been convicted under section 324, P. P. C. (voluntarily causing hurt by dangerous weapon) and sentenced to undergo R. I. For one year each, both sentences to run concurrently. The case has also been referred to us for confirmation of the death sentence passed against Jan Muhammad under section 374, Cr. P. C. Both these matters will be disposed of by this judgment.
2. ' Briefly, the prosecution case is that since 10-12 years there has been long-standing enmity over land and matrimonial matters between the appellants and the complainant party, both of whom belong to the same Narejo caste, That, on the night of 10/11th April 1973, appellants Moharam and Khamiso with two others are alleged to have damaged the onion cultivation on four jarebs of land belonging to Khair Mohammad, uncle of complainant Ghulam Qadir, in Deh Bangui Dero, Taluka Ratodero, which was being cultivated under the 'hump' of Hidayatullah. It is alleged that Hidayatullah had given an application to Ratodero Police Station I mplicating the said two appellants. On the day of the Incident at `tripahrl time at about 4-00 p. m. The complainant Ghulam Qadir along with P. Ws. All Martian, Abdul Rauf, All Nawaz and Ghulam Shabir were sitting in the otak of the complainant when they heard some commotion outside the street. On coming out they saw the appellants and the acquitted accused armed with guns and hatchets who started abusing the complainant party that they had made false application to the police accusing them of causing damage to the onion cultivation and thereupon appellant Malook fired his gun at Abdul Raouf, which hit him on his legs and brought him down senseless to the around. Thereafter, the complainant party due to fear ran inside the complainant's house but they were pursued by all the accused, who trespassed into the house and there inflicted hatchet blows and gunshot injuries to a complainant party and that appellant Jan Muhammad is alleged to have fired his gun which hit Mst. Bachul on the forehead. Thereafter, the accused ran away. Complainant Ghulam Qadir took injured Mst. Bachul to the P. S. Ratodero, situated 5 miles away, to lodge the F. I. R. But she died on the way. The F. I. R. Was lodged at 8.00 p. m. Half an hour earlier at 7-30 p. m., a counter F. I. R. Was 'Aged at the same police station by Muhammad Abbas Jokhio, in which he stated that while he and appellant Jan Muhammad were returning home from the latter's husking mill at tripahri" time, the complainant party, who were all armed with hatchets, came out of the house of one of them, P.
3. W. Ali Nawaz, into the street and gave 'hakal' to Jan Mohammad and abused the accused party for having damaged the onion cultivation of their uncle, Khair Mohammad. On this commotion, the other appellants came out running from the houses and in the fight which ensued, the complainant party inflicted hatchet blows to the appellants. On hearing cries, Muhammad Abbas slang with Mst. Lal Khatoon, Mst. Hajran, Mst. Samul and Mst. Bhanul, Narejas, came running and intervened, as a result of which they were inflicted injuries by the complainant party, who also received injuries at the hands of t'le appellants. Acquitted aecused Moula Bux and others, who came from the village, intervened and separated the parties. Thereafter, Muhammad Abbas carried injured appellants Jan Muhammad and Ahmed Bux Qaim in the bus and lodged the said F.
4. I. R.
5. ' Abid All Shah, S. H. O. Ratodero Police Station who recorded both the F. I. Rs. Carried out the investigation on the complaint of Ghulam Qadir. After recording the statements, inter alia, of the P.
6. Ws. He sent the dead body of Mst. Bachul for post-mortem examination to the Medical Officer, Ratodero. He inspected the wardat and prepared mashirnanta in the presence of mashirs Shahnawaz and P. W. Muhammad All on the pointation of complainant Ghulam Qadir. He secured blood-stained earth and 'p2Ial' from the wardat which was in the street outside the complainant's house, as also blood-stained earth from inside the house of the complainant. He also secured two cartridges wads from inside the house and recovered 19 pellets from the door of the complainant's house. The licensed guns of appellants Jan Muhammad and Malook along with a bandolier were secured on their production. He arrested the accused and submitted challan.
7. ' Dr. Anwar Sultana, Medical Officer R. H. C., Ratodero, who performed autopsy on the dead body of Mst. Bachul found a gunshot wound 5' X 2i1 ss 1' on the left frontal region extending to the middle of the left temporal area with scorched edges and gun-powder stains around it. She also examined injured Abdul Rauf, P. W. Mst. Bakhtawar, Ghulam Qadir, All Mardan, Ghulam Shabir and All Nawaz and found the following injuries on their persons: Abdul Rauf had a punctured gunshot wound spread all over the front and sides of the left and right legs with pellets imbedded therein ; Mst.
8. Bakhtawar had fracture on the junction of medial 1/3' lateral 1/3' of the left clavicle and minor bruise and abrasion injuries on various parts of the body ; on Ghulam Qadir were found 3 injuries, all simple in nature, namely a lacerated wound on the right parietal eminence r x x 1/4 abrasion on the right of forehead measuring r x 1/8' x 1/8' and a bruise on the upper part on the occipital region 2' x 4', Ali Mardan had one incised wound on the right parietal eminence running vertical from the front to the back on the upper part of the right side of the occipital bone measuring 2" x x r and 4 bruise injuries on the right side back of the chest, back of the right shoulder, back of the left shoulder and lower end of the back of the left forearm, which were certified as simple; Ghulam Shabir had one bruise injury on the dorsum of the right palm 4' x 4' which was simple in nature caused by a blunt instrument, such as lath! I Ali Nawaz had 2 incised wounds 4' apart running parallel to each other on the right parietal enimence measuring 1' x 4" x each, a bruise injury on the left temporal region measuring 2" x 1' and one punctured gunshot pellet wound in the front right side of the chest. All the injuries were certified to be simple.
9. ' Dr. Abdul Qasyum M.
10. 0., Civil Hospital, Larkana, examined the five appellants and the four injured ladies and found the following injuries on their persons ; on Jan Mohammad, there were four incised wounds and two abrasions as follows :- "(1) One incised wound 6' x 2' deep to the oral cavity cutting the mandible on the left side of the face passing justaear the anal e of mouth.
(2) Incised waned 24" x 1/3' scalp deep on the right side of occiput.
(3) Incised wound x i" deep to the scalp on the left side of the occiput.
(4) Incised wound 4" x 1/3' skin deep on the right eye-brow. (53 Abrasion r x 4' on the right cheek. (6)
11. Abrasion 1" x 4" on the frost on left thigh."
12. ' Appellant Malook had one lacerated wound 11" x r scalp deep on the right side of the frontal region and one incised wound " x 4' skin deep on the right palm. The injuries were simple ; appellant Moharram had one lacerated wound 2' x 2' scalp deep on the top of the head ; one contusion 1" e: 1' on the back forearm and one abrasion 2" x 1/3" on the back of kit thigh. Appellant Khamiso had one lacerated wound r x 1/3" scalp deep on the forehead, and one incised wound 4' x r skin deep on the back and upper Part of left forearms Appellant Ahmed Bug had one incised would 3" x 1/3" scalp deep on the left side of the frontal region, one lacerated wound 2' x 1/3' scalp deep on the top of the head and one abrasion 2" x 1/3' on the upper part of the back. Mst, Lalan had gunshot wounds of entry (semen in number) each 1/5' diameter on the outer surface of right leg without any charring of margins, while Mst. Hajran had one incised wound 14" x 2' x 24' deep cutting the middle medial epicondyle of the left humerous on the inner surface of left elbow. The fracture was confirmed on X-Ray examination, one contusion 4' x 3' on the back of right forearm and an incised wound 3/4' x 4' skin deep on the left cheek. On Mg'. Bhanul there were one lacerated wound 4' x 1/3" scalp deep on the left parietal region and one contusion 2" x 2" on the right forearm, and finally on Mst. Samul there were gunshot wounds entry (nine in number) each 1/5' in diameter spread over right foot and its toes without any charring of the margins.
13. ' In their defence statements before the trial Court, the appellants as well as the acquitted accused denied the prosecution case and pleaded enmity and hostility of the P. Ws. Against them. Those of them who suffered injuies on their persons stated that the injuries were caused by the complainant party, who were agressors and who were accused in the counter-case lodged against them.
14. ' At the trial Court, the prosecution relied entirely on the ocular testimony of eye-witnesses and the motive. The P. Ws. Who were related inter se and to the deceased were complainant Ghulam Qadir, Ali Mardan, Ghulam Stabir, Ali Nawaz, Mohammad Pinjal and Mst. Bakhtawar as well as Abdul Rauf whose evidence was brought on record under section 33, Evidence Act, as he had died after his examination in the committal Court. The learned trial Judge finding that the P. Ws, were interested and partisan witnesses, their testimony could not ee accepted except with caution and required independent corroboration. He found such corroboration in the supposed incriminating circumstances, namely motive, the presence of blood and recovery of two cartridge wads from inside the house and lastly pellet marks on the door of the complainant's house. He, therefore, placed the wardat at a place inside the house of the complainant and held the appellants party to be the aggressors. As tee five appellants sustained injuries on their persons, their participation in the incident was according to him, beyond reasonable doubr. But, as the remainivg fonr co- accused had no injuries on their persons, he came to the conclusion that their presence and participation in the crime was doubtful and giving them the benefit of doubt, he acquitted them.
15. ' The main question for consideration is whether the appellants have been rightly convicted by the trial Court. We have examined the entire evidence brought on record and have heard Mr. Muhammad Hayat Junejo, learned counsel for the appellants and Sabir Hussain Rahmaai from the State.
16. ' Where, as in this case, there are two counter-versions of the incident; one narrated by the prosecution witnesses and the other contained in the counter F. I. Re it is the paromouet duty of the Court to consider, which of the two versions is the more probable one On this will deeend the question as to which of them can be held to be aggressors. We agree with the learned counsel for the appellants hat the prosecution version appears to be highly improbable and that the version of the appellants party seems more plausible. Clearly, the complainant party suspected the appellants Moharam and Khaatiso of having a hand in damaging the onion cultivation of their uncle Khair Muhammad, in respect of which it is alleged that Hidayatullah had made an application to the police against them a day before the incident. Moharam and Kharniso are brothers inter se and are related to appellant Jan Muhammad. Since the police had not come to the village to investigate, the appellants could not have means of knowledge that their men had been implicated. There is no evidence on record to suggest the contrary. In fact. Abdul Rauf deceased) in his committal Court statement (which ins brought en record) admitted in cross- examination that they were waiting at the otak of the complainant for peliee to come in connection with the application filed by Hidayatullah regarding damage to the onion cultivation. Therefore, the probability is that when the complainant party sitting in the otak saw Jan Muhammad and Mohammad Abbas passing in the street on their way home from the husking mill, they were accosted by the complainant party and they were accused of damaging the onion cultivation of the complainant's uncle Khair Muhammad. That the complainant party was armed with guns, hatchets and lath's can be believed because in the fight which ensured, the appellants as well as four of their ladies received the personal injuries above described. In the commotion and cries, the other appellants, namely the three brothers Malook, Moharram and Khamiso and Aemed Bea came running out of their houses followed by the four ladies, namely 4(st. Lal Khatocn, Mst, Hajran, Mst. Samul and Mst. Bhanul. Likewise, the cries and commotion must have brought Mgt. Bacilli' and Mst. Bakhtawar to the scene. In the free fight which followed, several members from both the sides received gunshot. Lathi and hatchet injuries. The presence of the four ladies from the appellants' side cannot be daubted, because each of them sustained the personal injuries mentioned above.
17. The presence of Mst. Samul has been admitted by Abdul Rauf who stated that he tried to run away but Mst. Samul stopped him by grappling and thereafter he was fired at by Malook. He is the only P.
18. W. Who disclosed the presence of the complainant's ladies in the fight. All other P. Ws. Have suppressed their names as also the injuries inflicted by them to the ladies. It is natural for the ladies to come out of their house on hearing their cries, to intervene and stop the fight with their men-folk.
19. Therefore, their presence is natural. So is the presence of Mst. Bachul and Mst. Bakhtawar, ladies of the complainant party who had come foe the same purpose and in the free fight, the former received a gunshot fatal injury on her forehead and the latter suffered injuries from blunt weapon.
20. ' On the other hand, the prosecution version is that when Abdul Rauf was shot in the legs and fell down they ran away for safety into the complainant's house. This seems to be improbable, because in the first place, there was no occasion for them to run away for safety when they were not out-numbered and were armed with deadly weapons as is evident from the fact the appellants party received larger number and more serious injuries than were inflicted on the complainant party. It is, therefore, surprising that they should abandon Abdul Rauf in the street and run away for safety by seeking shelter in the house of the complainant. In the second place, it does not seem probable that the accused party would risk entering the enemys' camp and suffer a severe beating at the hands of complainant party who were armed with lethal weapons. It is not clear where Jan Muhammad suffered the injuries on his person. Bet if he had received them in the fight in the street, it is highly improbable that after receiving a grievous incised Nary cutting his left side jaw, he could pursue the complainant party into the house of the complainant to avenge himself. On the other hand, if the injuries were not suffered by him in the street but were inflicted in the house of the complainant, then these injuries have been suppressed by the P. Ws. As in the case of injuries suffered by all the other appellants. The presence of Mst. Bakhtawar, wife of P. W. Ali Nawaa in the the house of the complainant at the relevant time, has also not been explained. On the other hand, the presence and participation of four ladies from the appellants' side who received injuries on their persons, namely, Deist. Lakin, Mst Hajran, Mst. Bhanul and Mst. Samul (the presence of the last lady has been admitted by Abdul Rauf) shows beyond doubt that the fight took place in the street and not in the complainant's house.
21. ' The trial Court, however, accepted the version of the incident narrated by the P. Ws. Which make the appellants as aggressors because, according to him, it receives sufficient corroboration from circumstances such as the presence of motive, the presence of blood inside the house, the recovery of two cartridge wads and pellets from the door. Now, no doubt the trial Judge had to lock for corroboration because, all the P. Ws. Are interested and partisan witnesses. But the corroborative circumstances that are relied on, must be such as to lead to no other inference than to incriminate the accused and must tend sufficiently to satisfy the mind of the Court that the witnesses have spoken the truth. We have examined each of incriminating circumstances relied upon by the trial Judge In our opinion, none of them is strong and independent in itself to be relied upon to support a serious charge on a capital offence.
22. ' As far as the motive is concerned, the trial Judge accepted the fact that Hidayatullah did make an application to the police against appellant Khamiso and Moharam accusing them of damaging the onion cultivation, even though a certified copy of it was not forthcoming. But, whether the application was made or not, we have observed earlier that the appellants had no means of knowing that they had been accused of causing damage to the onion cultivation. Therefore, it is the complainant party which had the grudge against the appellants rather than the latter for lodging the false complaint, of which, they were not shown to have knowledge.
23. ' As far as the presence of blood inside the house of the complainant is concerned, it is shown both in the mashirnama (Exh. 31) as well as in the sketch (Exh. 23) prepared by Shafi Mohammed Memon, Tapedar. But the sketch also shows that Mst. Bachul was fired at and fell down at point `J' in the street and was then carried on a cot into the house of the complainant. The injury on her forehead must have bled for some time and, therefore, the presence of blood in the complainant's house is not surprising. But there was also blood in the street and samples of blood-stained earth and 'pale were secured by the police from that place vide mashirnama (Exh. 31) and statement of S. H. O. Abid Ali Shah (P. W. 12). The trial Judge was wrong in saying that only a blood-stained piece of paper was found in the street and nothing else.
24. ' The presence of the pellets in the door as well as cartridge wads from the house of the complainant appears to have impressed the trial Judge decisively. But, the presence of pellets in the door is as consistent with firing from outside in the street as from inside. Because if someone enters the door and tires, one does not expect to find pellet marks on the door behind him. Equally, the recovery of the two cartridge wads from inside the house of the complainant does not connect the appellants with the crime. It is not established as to which shot-gun the cartridge wads belonged and in the absence of recovery of empties and a ballistic report, such circumstances cannot be relied upon.
25. ' It is very significant that although the incident has been witnessed by independent persons living in the adjoining houses in the main street, no on has come forward to support the prosecution case. When cross-examine Abid Ali Shah, S. H. O. Admitted that he did not record statement of any other person living near the vardat while investigating the case and gave as an excuse that the names were not disclosed to him by the complainant. It seems that the P. Ws. Were interested to 'shift' the wardat from the street to the house of the complainant in order to make the appellants party appear to be the aggressors. In our opinion, the testimony of the P. Ws. Does no inspire confidence and the supposed incriminating circumstances relied upon by the trial Judge are too weak to support a charge on a capital offence. We are, therefore, of the view that the prosecution has failed to establish its case beyond reasonable doubt. We would give the appellants the benefit o doubt and acquit them. They should be released forthwith unless required in some other case.
26. Except appellant Jan Muhammad, the other four appellants are on bail. Their rail bonds are discharged. The appeal is allowed and the reference is rejected. {{BLUR PAGE}}