' RANA BHAGWAN DAS, J.--- This judgment shall dispose of aforesaid three criminal appeals filed under section 410, Cr.P.C. And criminal revision application under section 435/439 Cr.P.C. Which arise out of judgment dated 15-10-1984 passed by learned Additional Sessions Judge, Sukkur whereby he acquitted respondents Muhammad Hasan and Ghulam Muhammad of the charge of murder, attempt to commit murder, unlawful assembly etc. By the same judgment learned trial Court convicted appellants Zulfikar Ali Shah (since dead), Mehrab Mahar, Abdul Latif, Karim-Bux (since dead), and Muhammad Bux. Appellants Zulfikar Ali Shah and Karim Bux died natural death during the pendency of their appeals and by natural implication their appeals should stand abated but Mr. Habibullah Shaikh learned counsel for appellant Zulfikar Ali Shah has argued the appeal on merits with a view to avoid any stigma on the character of the deceased appellant: Messrs Ghulam Kadir Jatoi and Abdul Haleem Pirzada advocates though filed Appeals Nos.71 and 75 of 1984 on-behalf of their respective clients, did not appear to argue out appeals despite service of notice and maximum indulgence shown by the Court. Criminal Revision No,27/1985 is filed by complainant Muhammad Sharif assailing the acquittal of respondents Muhammad Yousif and Ghulam Muhammad by the same judgment on a number of grounds and prayed for setting aside the acquittal order.
2. Facts in a nutshell leading to the appeals are that on 11-7-1976 at about 4-30 a.m. Muhammad Sharif lodged F.I.R. At police station Panoakil that in 1959-60 one Ashra Awan obtained a piece of land measuring 54-00 acres in Deh Dirb Taluka Panoakil on lease from the Government out of which he privately distributed 17-00 Acres to Khan Muhammad, 20-00 Acres to appellant Zulfikar Ali Shah while remaining 17-00 Acres Were shared by Bashir Ahmed, Hasnat and Muhammad Sharif himself. According to him about a month prior to the incident one of the appellants, namely, Karim Bux (since dead) went to him and asked him to abandon the lands as he had obtained such lands on lease from Zulfikar Ali Shah. Muhammad Sharif allegedly informed him that Zulfikar Ali Shah was in possession of 20-00 Acres of land and he had no concern with the lands held by him.
Consequently he refused to vacate the land. It is further averred in the F.I.R. That one day prior to the incident Zulfikar Ali Shah and accused Muhammad Hasan went to the complainant party and threatened them to vacate the lands else they would be done to death but the latter declined to part with the possession of the lands. It is said, on the fateful day complainant party went to the lands and took over rotation of water for irrigating their lands. They went to check the flow of the water when they came across appellants as well as acquitted respondents. Zulfikar Ali Shah and Muhammad Hasan were empty-handed, Muhammad Bux Malano was armed with a Lathi, Ghulam Muhammad Malano was carrying a hatchet while Muhammad Murad, Karim Bux Mahar, Mehrab Mahar and Abdul Latif Lanjar were armed with single barrel guns. As per F.I.R. Appellant Zulfikar Ali Shah threatened the complainant party not to go near the water else they will be murdered but complainant party replied that they had diverted the water towards their land as it was their rotation of water. At this moment Zulfikar Ali Shah instigated all the accused not to spare complainant party whereupon Muhammad Murad fired point blank at them which hit deceased Jalal on his abdomen who fell down. Karim Bux fired a shot which hit Abdul Latif skin deep who fell down. Rest of the assailants inflicted blows to the witnesses who succeeded in running away with a view to save their lives. They brought Holy Qura'n from their house whereupon appellants decamped while raising slogans. Fire arm reports attracted P.Ws. Amin and Muhammad Hussain who came to the place of incident.
3. After the registration of F.I.R. Additional S.H.O. P.W. Niaz Ali inspected the place of incident at the pointation of Muhammad Sharif where he found dead body of deceased Jalal and after preparing the Mashirnama referred it for post-mortem examination. He secured blood-stained earth and prepared a memo. He noted fire-arm and hatchet injuries on P.W. Abdul Latif who was bleeding from his injuries. After preparing a memo. He referred him for examination, treatment and certificate. He recorded the statements of material witnesses and on the same day arrested appellant Muhammad Bux and secured golden and silver ornaments at his pointation. On interrogation he led to the recovery of a Lathi, from his house which was secured in presence of the Mashirs. On the next day he examined injured Abdul Latif in Taluka Hospital Panoakil. On 15-7-1976 he arrested accused Muhammad Murad (since dead) and Muhammad Hasan. On interrogation Muhammad Murad volunteered to produce a single barrel gun used in the commission of the crime and produced the same from 'Khabar' tree in his house. He secured and sealed the weapon and asked for a licence but could not produce it. On 24-7-1976 appellants Karim flux and Abdul Latif were arrested. The Additional S.H.O. Then handed over the papers to S.H.O. Abdul Majeed for further investigation. Before parting with the investigation he is stated to have referred the single barrel gun produced by Muhammad Murad alongwith two empty cartridges to the Ballistic Expert and bloodstained earth to the Chemical Examiner. Both the experts opined in positive.
4. Autopsy on the dead body was performed by Dr. Moohan Das, Medical Officer, Rural Health Center, Panoakil who found two lacerated wounds on internal examination. In his opinion death of the deceased was due to shock and haemorrhage as a result of injuries which were ante-mortem and caused by a fire arm. On the person of injured Abdul Latif, he found as many as seven injuries of which two were lacerated wounds, one incised wound, one contusion, two bruises and complaint of pain in back lumber region. On completion of investigation the appellants as well as the acquitted respondents were brought to trial where prosecution examined Muhammad Sharif P.W.1, Muhammad Hussain P.W.2, Abdul Latif P.W.3. Muhammad Hanif P.W.4, Niaz Ali P.W.5, Dr. Moohan Das P.W.6 and Shafi Muhammad P.W.7.
5. In their respective statements appellants denied all allegations and proclaimed innocence. They asserted that they were falsely implicated on account of enmity. Appellant Karim Bux alleged that he was involved due to his relationship with Haji Atta Muhammad Mahar with whom complainant party had a dispute over the lands. Appellant Muhammad Bux claimed the articles wrapped in a handkerchief recovered from his house to be his property. Appellant Muhammad Hasan raised a plea of alibi claiming that he was in Government service and on duty on the day of incident.
Accused Mehrab claiming to be Kamdar of Haji Atta Muhammad Mahar complained of victimisation on account of dispute over lands between complainant party and Atta Muhammad Mahar. Likewise Zulfikar Ali Shah claimed that he was falsely implicated as he had filed a civil suit against complainant Muhammad Shareef and injured Abdul Latif. Respondent Ghulam Hussain.
Explained that he had acted as witness against complainant Muhammad Sharif, P.W. Abdul Latif and others in a murder case prior to this incident, therefore, he was falsely roped.
6. Unnatural death of deceased Jalal as a result of fire arm injuries on his person and factum of fire-arm as well as incised and hard substance injuries on the person of P.W. Abdul Latif being conclusively established by the evidence of medical officer and not seriously controverted by the appellants, points calling for determination in this appeal are:
(1) Whether appellants being armed with deadly weapons were rightly found guilty of rioting?
(2) Whether the appellants were rightly found guilty of committing murder of deceased Jalal and attempt at the life of P.W. Abdul Latif with intention to kill him in prosecution of their common object being members of unlawful assembly?
(3) Whether respondents Muhammad Hasan and Ghulam Muhammad alias Ghulam Hussain were wrongly acquitted by the trial Court?
Point No,1
7. From the evidence of P.Ws. Muhammad Sharif, Abdul Latif and Muhammad Hussain it appears that all the appellants with the exception of Zulfikar Ali Shah and Muhammad Hasan were duly armed with deadly weapons i,e, Lathi, hatchet and guns in a manner that could justify the formation of an unlawful assembly for the commission of rioting. Suffice it to say discussion in the judgment of the trial Court on this point is neither arbitrary nor unreasonable. Indeed there. Is not much controversy as to the presence of the appellants at the place and time of incident as alleged by prosecution. The plea of alibi taken by appellant Zulfikar Ali Shah during the course of cross- examination to the witnesses and reiterated by way of M.A. 951/88 moved before this Court for recording additional evidence was dismissed on merits through a speaking order by a Division Bench of this Court, and therefore, not substantiated and thus of no consequence to him.
Surprisingly learned counsel for this appellant without referring to the record contended at the bar that this plea had been given up and pressed at the stage of appeal. This being patently a false statement on the fact of it, it can only be regretted and is reflective of the sense of responsibility on the part of the counsel.
8. As to the involvement of the appellants in the commission of these crime, it will appear from the evidence that all of them went to the scene of offence duly equipped and with a pre-meditated motive and notion to dispossess the complainant party from their lands and failing to achieve that object to cause the death of the complainant and attempt at the life of Abdul Latif with intention or knowledge that their act was likely to cause death of the injured. In this regard there is sufficient, satisfactory and reliable evidence of P.Ws. Muhammad Sharif and Abdul Latif both of, whom appear to be natural and ocular witnesses of the incident as their presence at the scene of offence can hardly be suspected. Their testimony is further strengthened and fully supported by evidence of P.W. Muhammad Hussain who was attracted to the place of incident on hearing fire-arm reports and who saw dead body of deceased Jalal and P.W. Abdul Latif in injured c condition. All the witnesses have been cross-examined at quite some length and despite lengthy and gruelling cross-examination we are of the view that their veracity has not been shattered so as to suspect their evidence or to discredit the same. Mere circumstances that deceased Jalal was the brother of first informant Muhammad Sharif in our view does not militate against the credentials of this witness who being close kith and kin is supposed to be fully conversant with the incident and a natural person to set the law into motion. Needless to observe with the deterioration of human values in the society strangers and third parties do hardly come forward to volunteer for their evidence and generally there is an attitude of hesitation to appear as a witness before the police agencies and the Courts where the atmosphere and environment is not satisfactory and conducive to attract such elements to come forward and depose for the sanctity of truth. Likewise if P.W. Muhammad Hussain happens to be brother of P.W. Abdul Latif, we do not think this circumstance as a disqualification for a witness or to treat such evidence with an amount of suspicion or discredit. Indeed it is the quality of evidence which should weigh for determining the guilt or otherwise of a person rather than quantity. It is well-settled principle of law that mere relationship of. Witnesses inter se or relationship with the deceased is of no consequence unless the witnesses are shown to be hostile and inimically disposed towards the accused. No doubt certain questions have been put to the witnesses suggesting events of the so-called enmity but essentially these are too remote and do not inspire confidence so as to brush aside the impact of evidence which has been rightly accepted by the trial Court.
9. In addition to the ocular evidence there is adequate corroborative medical evidence which lends support to the oral evidence which has been found to be convincing and reliable. Learned counsel for the appellants pointed out certain admissions tending to show that there were discrepancies in the evidence with regard to seat of injuries sustained by P.W. Abdul-Latif but in an atmosphere of terror and confusion it is hardly possible for the witnesses to recall and remember the unusual events with accuracy. Minor discrepancies in the evidence if any at all deserve to be ignored and over looked on over-all assessm ent of the evidence on record. In any event we are IF least impressed by the submission of the defence counsel when he says that lacerated wounds No,1 and 2 on the person of Abdul Latif were caused by a hard blunt substance and not by a fire-arm. There appears to be a misconception on the part of the counsel in as much as in his evidence medical expert categorically stated that nature of both the injuries was reserved for want of X-Ray examination and he did not exclude the use of fire-arm for causing these injuries. In fact no question was directed to this witness with regard to weapon as a result whereof such injuries could have been caused.
10. Lastly there appears to be a strong motive on the part of the appellants for causing the death of the deceased and attempt at the life of P.W. Abdul Latif. The fact that most of them went to the scene of offence duly armed with deadly weapons, called upon the complainant party to vacate the lands failing which they would be done to death is reflective of their bent of mind. This circumstances clearly suggests that they were determined to dispossess the complainant party and failing that to acquire such possession by use of brutal force but by reason of death of deceased Jalal, they were constrained to decamp giving up their desire of obtaining possession of the land by force. There is adequate evidence on the record suggesting that even before the date of incident appellant Zulfikar Ali Shah and Karim Bux had been to the complainant party to vacate the land on the plea that Karim Bux had taken lease of 54 Acres of land from Zulfikar Ali Shah who possessed only 20 Acres of the disputed land. Learned counsel for appellant Zulfikar Ali Shah was at pains to suggest that he being an old person of 80 years could hardly move about much less taking the law into his hands by going to the land of the complainant and instigate his companions to commit the offence. There appears to be no logic behind this submission of the learned counsel as on the showing of appellant Zulfikar Ali Shah himself he was aged about 65 years when examined at the trial under section 342, Cr.P.C. On 27-11-1982. Unfortunate incident admittedly took place as far back as July, 1976. It is, therefore, very difficult to subscribe to the view of the learned counsel that it was quite improbable on the part of this appellant to join hands with the co- appellants and instigate the commission of this heinous crime. Be that as it may, it is not the age factor alone which determines the involvement of a person in the commission of the crime. It is fact the intention and motive for the commission of the crime and the mens rea which might be instrumental in prompting a person to commit an act. Strictly speaking the question of age is generally immaterial unless it can be shown from evidence that an accused was physically handicapped and disabled from moving about or acting in a particular manner.
11. For these reasons it may be safely concluded that the conviction oil the appellants on the charge under sections 302, 307 read and with sections 114/148 d 149, P.P.C. Is neither unfounded nor does it suffer from any legal infirmity.
12. Adverting to the last question suffice it to say that respondents Muhammad Hasan and Ghulam Muhammad alias Ghulam Hussain did not take any active part in the commission of the crime.
Indeed Muhammad Hasan was allegedly present without any weapon with him whereas accused Ghulam Hussain was admittedly not nominated in the F.I.R. And instead one Ghulam Muhammad was introduced as one of the accused in the F.I.R. Lodged by Muhammad Sharif. It may further be observed that in his evidence Muhammad Shard- categorically stated that he knew Qhulam Muhammad uncle of accused Ghulam Hussain. He further clarified by stating that accused Ghulam Hussain was not called by any other name of Ghulam Muhammad. He asserted that he had named accused Ghulam Hussain in the F.I.R. Which is factually incorrect as explained by Investigating Officer Niaz Ali in his evidence. It is on this account that the trial Court was pursuaded to hold that Ghulam Hussain having not been nominated in the F.I.R., he was wrongly implicated with another name Ghulam Muhammad who was a different and distinct person. Even 9therwise one incised would on the person of injured Abdul Latif caused by a hatchet cannot be legally taken into consideration against respondent Ghulam Hussain as no such question' was put to him at the trial under section 342, Cr.P.C. There is no strong reason to find fault with this observation of the trial Court who had the better opportunity of hearing all the witnesses and the person arrayed as accused at the trial. Even otherwise well recognized prescription of innocence in favour of an accused is strengthened and doubled by a finding of acquittal recorded by competent Court which cannot be lightly disturbed more so in the exercise of revisional jurisdiction which places express embargo on the power of the Court to convert a finding of acquittal into conviction.
Irrespective of the fact whether the applicant had approached District Magistrate for filing- an acquittal appeal against the acquittal of the respondents, fact of the matter remains that the impugned judgment relating to the acquittal of the respondents has not been shown to be arbitrary or perverse on the face of it. We therefore, find no substance in the criminal revision filed by Muhammad Sharif against the acquittal of the two respondents.
13. In the result criminal appeal as well as criminal revision application are dismissed. Appellants Mehrab, Abdul Lateef and Muhammad Bux are present on bail. They are taken into custody and sent to jail to serve out the unexpired portion of their sentence.
Appeal and . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.