1. ' By this appeal the appellant has challenged the judgment, dated 27-11-1997 of the learned 1st Additional Sessions Judge, Thatta, whereby the appellants were convicted and sentenced under section 302/34, P.P.C. For imprisonment for life and fine of Rs,1,00,000 each and in default whereof to suffer further R.I. For 3 years. The fine, if realised, half of the same was ordered to be paid to the legal heirs of the deceased.
2. ' The brief facts of the prosecution case are that on 11-2-1995 at 8-50 p.m., the complainant Ali Muhammad after leaving his maternal-uncle Muhammad Ismail at the shop of Muhammad Saleem Jarejo proceeded for offering prayer to the nearby mosque and in the meanwhile he heard cries of Muhammad Ismail coming from the shop of Muhammad Saleem Jarejo. He, P. Ws.
3. Habibullah and Siddique Jarejo went running and in the electric light they saw the appellants armed with hatchets and co-accused Nandan alias Hazoor Bux with Lathi. Out of them appellant Gulli caused sharp side hatchet blow on the head of the complainant's maternal-uncle Muhammad Ismail, who fell down. Thereafter, appellant Bholoo caused him blow from the back side on the right temporal region of the head, whereas co-accused Nandan caused him Lathi blow on his hack. The complainant party raised Hakal to the appellants, who seeing the persons approaching there, fled away. The deceased was brought in injured condition at Police Station Mirpur Bathoro, where the F.I.R. Was lodged and thereafter, he was referred to the hospital. Motive narrated in the F.I.R. Was that 5/6 months prior to the incident the cattles of appellant Gulli and others had damaged the sugarcane cultivation of deceased Muhammad Ismail and over there, there had occurred exchange of harsh words and quarrel in between them. The injured was removed to the Taluka Hospital Mirpur Bathoro for treatment but as his condition was very serious, so he was referred to Liaquat Medical College Hospital, Hyderabad, but he could not reach there and expired in the way and was again brought back to Taluka Hospital, where his post-mortem was conducted. The F.I.R. Was initially lodged under section 324, P.P.C. And the offence after the death was subsequently converted to one under section 302, P.P.C. The appellants and co- accused Nandan were arrested and challenged before the Court of law.
4. ' A formal charge was framed against them to which they pleaded not guilty and claimed trial.
5. ' In order to prove the case, prosecution examined complainant Ali Muhammad, who produced F.I.R.
6. P.W. Saleem Jarejo, P.W. Siddique, Dr. Abdul Shakoor, who produced the post-mortem report, P.W.
7. Tapedar Pir Bux. Who produced the sketch of Vardat, P.W. Mashir Abdul Razzak, who produced the memo. Of injuries, memo. Of dead body, inquest report, memo. Of clothes of deceased, memo. Of Vardat, memo. Of arrest/recovery of appellant Gulli, memo. Of arrest/recovery of appellant Bholoo and memo. Of arrest/recovery of co-accused Hazoor Bux alias Nandan, S.I.P. Haji Muhammad Iqbal, who produced the report of Chemical Examiner and Mr. Shahmir Khan Jokhio. Mukhtiarkar and F.C.M., who produced the judicial confessions of the appellants.
8. ' The appellants in their respective statements under section 342, Cr.P.C. Denied the case of prosecution and claimed innocent. The appellants examined themselves on oath as required under section 340(2), Cr.P.C. But did not lead evidence in defence.
9. ' The learned trial Court framed the following points for determination:-
(1) Whether deceased Muhammad Ismail died unnatural death?
(2) Whether accused in furtherance of their common intention committed the murder of deceased Muhammad Ismail or it was an individual act of. Any of the accused?
10. ' On the assessm ent of evidence the appellants were found guilty and were convicted and sentenced as above, whereas co-accused Nandan alias Hazoor Bux was acquitted.
11. ' I have heard Mr. Ali Gohar Soomro, the learned counsel for the appellants and Mr. Javed Akhtar, the learned counsel appearing on behalf of the Advocate-General, Sindh, for. The State, at length and have gone through the entire evidence and case-law.
12. ' The learned counsel for the appellants mainly contended that since the learned trial Court has disbelieved the evidence of recovery and confession and have also awarded benefit of doubt to co-accused Nandan alias Hazoor Bux, as such the appellants may also be 'provided the same benefit and be acquitted. He next contended that there is apparent> conflict in between ocular and medical evidence. According to him the complainant in his statement at trial had deposed that deceased Muhammad Ismail was brought at Liaquat Medical College Hospital at 1-00 a.m. In injured condition where he expired and from there he was brought back at about 3 or 3-30 a.m. To the Taluka Hospital, whereas P.W. Dr. Abdul Shakoor in his statement had stated that the deceased expired at 10-30 a.m. On 14-2-1993 and was brought back for post-mortem to Taluka Hospital on the same day. He next argued that ocular evidence of complainant Ali Muhammad, P.Ws.
13. Muhammad Saleem and Siddique is also not convincing and contradictory statements have been given by them at trial, as such creates doubt in the case of prosecution, benefit of which may be extended to the appellants. According to him P.W. Muhammad Saleem has stated that the moment P.Ws. Ali Muhammad, Hameedullah and Siddique reached his shop, viz. The place of incident, the appellants and co-accused had run away. Thereafter, complainant Ali Muhammad took injured to the police station in a Suzuki. From the statement of this witness it transpires that the complainant and the other witnesses had not seen the incident as such it badly reflects upon the verasity of prosecution case. He further, went on arguing that even the motive has not been proved against the appellant beyond any shadow of doubt as none of the witnesses had stated that they had seen the cattles of the appellants damaging the sugarcane crop of the deceased. In support of his contentions he relied upon the following case-law:--
(1) 1971 PCr.LJ 931 (2) NLR 1993 114, (3) 1993 PCr.LJ 1118(e) and (4) 1977 PCr.LJ 30.
14. ' The learned counsel for the appellants further contended that according to the F.I.R. The appellant Bholoo is said to have caused backside hatchet blow on the right temporal region of head, whereas the other witnesses had given contrary statements to this, as such the participation of appellant Bholoo in the commission of offence becomes doubtful.
15. ' On the other side, the learned counsel for the State vehemently opposed the contentions raised by the appellant's counsel and contended that in his opinion the case against appellant Bholoo is of doubtful nature as P.Ws. Examined at trial have given contrary view of the role ascribed to him in the F:I.R., as such he has no objection if appellant Bholoo is acquitted, whereas the prosecution has fully proved the case against appellant Gulli whose role described in the F.I.R. Has not only been corroborated by the complainant, P.Ws. Muhammad Saleem and Siddique, the eye-witnesses, but has also been fully corroborated by medical evidence. The case of prosecution hinges upon the following pieces of evidence:--
(i) Eye-witness account furnished by complainant All Muhammad, P.Ws. Muhammad Saleem and Siddique;
(ii) Medical evidence furnished by P.W. Dr. Abdul Shakoor;
(iii) Evidence of motive deposed at trial by the complainant and the other witnesses;
(iv) Evidence of recovery of blood-stained hatchets, Lathi, earth and clothes of the deceased (disbelieved by the trial Court); and
(v) Confessional statements of the appellants (disbelieved by the trial Court).
16. ' In order to arrive at right conclusion it is essential to discuss the above pieces of evidence in the light of evidence recorded at trial and also the case-law referred. The eye-witness account consists of depositions of complainant Ali Muhammad and P.Ws. Muhammad Saleem and Siddique. The complainant in F.I.R. On the factum of incident has said that on the day of incident at about 8-50 p.m. While he and P.Ws. Hameedullah and Siddique were going to offer Isha prayer, they heard cries of his uncle Muhammad Ismail coming from the shop of P.W. Muhammad Saleem and went back to the shop of Saleem and saw in electric light appellants Gulli and Bholoo with hatchets, whereas Nandan with Lathi and within their sight appellant Gulli caused sharp side hatchet blow on the head of Muhammad Ismail, who fell down and appellant Bholoo caused him hatchet blow from the backside on his temporal region, whereas acquitted accused Nandan, caused him Lathi blow on other parts of his body. The complainant has fully supported this version of F.I.R. And has categorically stated that on the day of incident at about 8-30 p.m. While he and P.Ws. Muhammad Siddique and Hameedullah were going to offer Isha prayer, they heard the cries of deceased Muhammad Ismail. They returned on the cries and when they reached near the shop, they saw appellant Gulli hurling hatchet blow on the head of his maternal-uncle Muhammad Ismail, who fell down and appellant Bholoo caused him blow from backside of the hatchet. They challenged and raised Hakal not to kill deceased Muhammad Ismail but in the same moment acquitted accused Nandan also caused him Lathi blows on his backside. On the same point P.W.
17. Saleem in his examination-in-chief has clearly stated that on 14-2-1993 at about 8-30 p.m. He was sitting at his shop alongwith P.W.. Siddique, P.W. Hameedullah and complainant Ali Muhammad and deceased Ismail, out of them complainant Ali Muhammad, P.Ws. Hameedullah and Siddique left from offering Isha prayer leaving deceased Ismail with him on the shop. There appeared appellants and co-accused Nandan alias Hazoor Bux within his sight appellants caused hatchet blow to deceased Ismail, whereas accused Nandan alias Hazoor Bux gave Lathi blows on the back of his body and on the cries of the deceased, P.Ws. Hameedullah, Siddique and complainant Ali Muhammad came there and they all saw that the deceased had received head injury on right parietal region of head. He has further stated that the moment P.Ws. Arrived there, the appellants ran away. The eye-witness P.W. Muhammad Siddique too has categorically deposed at trial that on the day of incident at about 8-30 or 8-45 p.m. While he and complainant Ali Muhammad were going to offer Isha prayer and were on the way, when they heard cries from the shop of P.W.
18. Saleem, they returned back and saw the appellants with hatchets and acquitted accused Nandan with Lathi and within their sight appellant Gulli caused sharp side hatchet blow on the head of Ismail, whereas appellant Bholoo caused him blow from the backside of hatchet on right side parietal region of the head of the deceased and then they ran away.
19. 'From the above discussion it is at least proved beyond any shadow of doubt that appellant Gulli had caused sharp side hatchet blow on the head of deceased Muhammad Ismail, which has been fully corroborated by the medical evidence to be fatal. Though the defence has sufficiently cross- examined the above witnesses, even then no fruitful result of any sort had come out.
20. ' So far the role ascribed to appellant Bholoo is concerned, according to the F.1.R., he is said to have caused backside hatchet blow on the right temporal region of the deceased after he fell down on the ground. The complainant in his deposition at trial with regard to appellant Bholoo has said that he gave blow of blunt side of hatchet to his maternal-uncle Ismail after he fell down on the ground.
21. He has not specifically ascribed as to on which part of body appellant Bholoo caused said injury to the deceased. So far P.W. Saleem's attribution of the role against appellant Bholoo is concerned, he has deposed that while he and deceased were sitting on the shop, appellant Gulli and Bholoo armed with hatchets came there and hurled hatchet blow to deceased Ismail. In his examination- in-chief he had further stated that he and the other P.Ws, saw that deceased Ismail had suffered hatchet injury on right parietal region. As per P.W. Siddique, the other eye-witness, appellant Bholoo had hurled a blunt side hatchet blow on the right parietal region of the deceased. Dr. Abdul Shakoor in his evidence has described two injuries over the body of deceased, which are as under:- - ' Injury No,1. Incised wound 6.5 c.m. x 0.5 c.m. x bone deep at the right parietal region of the skull, fracture of parietal bone.
22. ' Injury No,2. Swelling 3 c.m. x 2 c.m. At the right side of face, fracture of Zygomatic bone and maxila on right side.
23. ' According to this witness, injury No, I was said to have been caused with sharp cutting weapon like axe and injury No,2 with hard substance like Lathi and in his opinion injury No,1 particularly was sufficient to cause death. This variation in the statements of above witnesses with regard to the role ascribed to appellant Bholoo creates sufficient doubt as to its participation in the commission of offence. From the above discussion of the evidence against appellant Bholoo, the seat of injury attributed to appellant Bholoo is inconsistent, as such a clear benefit of doubt is created. This further gets support from the confessional statements of appellant Gulli as well as appellant Bholoo. According to appellant Gulli appellant Bholoo as well as co-accused Nandan were having Lathis and caused Lathi blows to deceased Muhammad Ismail. The same has been said by appellant Bholoo in his confessional statement. In short the role of causing back side hatchet blow to deceased Muhammad Ismail on the temporal region by appellant Bholoo, as mentioned in the F.I.R., has not been supported by complainant Ali Muhammad in his statement at trial, whereby he has not ascribed as to on which part of body appellant Bholoo caused deceased the injury. By simply saying that he caused backside hatchet blow to deceased after he fell down is not sufficient to corroborate the version given by him in the F.I.R. P.W. Saleem has given a contrary view to that of the complainant and has said that both the appellants caused deceased hatchet blows and, thereafter, the deceased was found to have suffered an injury on head at right parietal region. The last eye-witness, namely Siddique too has deposed quite contrary to the version of the above two said witnesses and has said that appellant Bholoo caused backside hatchet blow on the right side of head i,e, parietal region of the deceased. Dr. Abdul Shakoor in the post-mortem as well as in his deposition with regard to injury No,2 has described it as swelling on the right side of face. In the referred case of Ramzan and 2 others v. The State 1971 PCr.LJ 931, a Division Bench of this Court had given benefit of doubt and had acquitted the appellant while observing that seat of injuries also reflects on credibility of eyewitnesses and make ocular version as to manner in which blows were inflicted on deceased improbable. On the conflict in between ocular testimony and medical evidence, a Division Bench of this Court in the case of Siddique v. The State 1977 PCr.LJ 30, had set aside the conviction and sentence and had acquitted the accused.
24. Adverting to the evidence of motive, it is established that 5/6 months prior to the incident the cattle's of appellant Gulli had damaged the sugarcane cultivation of deceased Ismail and the cattle's were impounded in pan which had resulted in quarrel in between them and due to that grudge deceased Ismail was done to death. It is pertinent to note that the said motive was specifically pleaded in the F.I.R. By the complainant and deposed at trial against appellant Gulli and corroborated by P.W. Saleem, as such this piece of evidence is proved against him beyond any shadow of doubt. So far appellant Bholoo is concerned, neitlrr complainant in the F.I.R. Nor there has been said anything against him in the testimonies of complainant and P.W. Saleem, as such appellant Bholoo stands exonerated from this charge.
25. ' So far the evidence of recoveries and confession is concerned, the same having been disbelieved by the trial Court, need not be thrashed afresh here. Cogent reasons have been advanced by the trial Court while disbelieving them. The case of Manzoor Ali and another v. The State NLR 1993 (?) 114 is on different facts and circumstances and has no bearing with the case of appellant Gulli. The contention that examination of the appellants under section 342, Cr.P.C. Was not recorded properly and no opportunity was given to them to explain each and every circumstance appearing in the evidence against them, has no force. According to their statements in entire evidence recorded against them at the trial has been put to them in their statements, as such the case of Syed Ali Shah and Shahji v. The State 1993 PCr.LJ 1118(E) does not support the case of the appellants.
26. Pursuant to the above discussion, I am of the considered opinion that prosecution has succeeded in proving and establishing its case against appellant Gulli beyond doubt and no explanation can be taken to his conviction and sentence recorded at trial. The ocular testimony of the above referred eyewitnesses inspires confidence and is in full consonance with medical evidence against him. The motive set up by the prosecution stood proved on record against him. Accordingly the appeal in respect of appellant Gulli is dismissed and his conviction and sentence recorded against him is maintained. So far the case of appellant Bholoo is concerned, while appreciating the above evidence recorded against him, his presence at the spot and his participation in the offence is doubtful, as such he is extended benefit of doubt and is acquitted. The conviction and sentence recorded against him is set aside. He may be released forthwith if not required in any other case.