JAMALUDDIN H. AHMt3D, J.-The Four appellants in this case were convicted by the Sessions Judge.
Khairpur, for offences under sections 302, 307 read with 34, P. P. C. Appellant Haji has been eentenoed under section 302/34 to death, and under section 307/34 to R. I. For 5 years. The other three appellants Parial, Saindino and Yar Muhammad have been sentenced to life imprisonment under section 302/34 and a fine of Re. 1,000 in default R. I. For six montbs, and they have been further sentenced under section 307/34 to R. I. For five years. They have now appealed against the said conviction and sentences and the matter has also otherwise been referred for confirmation of the death sentence.
2. The prosecution case, stated briefly is that nikah ceremony of MJt. Wadhul, a daughter of the complainant Shahban was being held in the Otaq of witness Mumtaz Soomro at night time on 24- 5-1973. As she was being married to one Muhammad Yousuf Soomro, who belonged to Soomros of Pir-Jo-Gotb, the neater relations of the complainant were dissatisfied with this marriage. Appellant Haji is the sister's husband of the complainant while appellants Parial, Yar Muhammad and Saindino are respectively his brother, son and sister's son. Although the complainant's sister, f.e.
Haji's wife had died long before the incident, the relations between them continued to be cordial and as stated by the complainant, appellant Haji bad demanded from him, the hand of his daughter, but, as be had already decided to marry her to Muhammad Yousuf, he had turned down his request. Haji had therefore. a cause of annoyance with the complainant. At the time of incident while preparations were being made for the nikah, after the guests had gathered and Muta Ismail Jabal called for the purpose, the appellants suddenly appeared on the roof of the Otaq of Mumtaz from the side of the adjoining house which belonged to A.I Nawaz the son-in--law of appellant Hsji.
Appellant Haji had a gun while Parial and Yaro were armed with hatchets. Appellant Saindino alone lad a lath!. Appellant Haji shouted at the gathering to beware and not to leave, as he would commit murder. All the appellants then started abusing from the roof, challenging as to who dared to have nikah with their fiancae. The appellants could be seen In the light of the hurricane lamp which was in the otak. Besides the electric light that was in the outside street. Appellant Haji had started firing at the persons assembled in the otak and witnesses got injured. 1n this situation the complainant left the otak and proceeded straight to Lugman Police Post, where his first report was recorded by the A. S.1. Manzoor Hussain.
3. The A. S. I. Manzoor Huosain of the Luqman Police Pool on receiving the complaint accompanied the complainant and rushed to the scene of offence which was at a distance of three furlongs only. He found P. Ws. Karim Buz, Mumtaz, Ejaz sod Shaman lying injured, while Hajan was already dead. After preparing mashireama of the injuries of these persons and recording their statements he sent them with a letter to the hospital for examination and treatment. In the morning he prepared a masbirnama of the scene of offence in the presence of mashirs Muhammad Umar and Nazar Muhammad, secured blood-stained earth and a blood-- stained Gilm. He also secured six empty cartridges and one missed cartridge which were lying on the scene of offence. He sent the dead body of deceased Hajan for post-mortem examination after preparing the inquest report. He also secured a ladder, which was lying by the western side wall of the roof of Mumtaz Soomro's otak in the house of A.I Nawas and prepared a separate mashtrnarna for this He then examined P: Ws. Manzoor, Andal, Gulan, Muhammad Yousuf and Mula Ismail Jabal.
On the same day he arrested appellants Haji, Parial and Saindino from Haji'e otak and prepared a mashfrnama of their arrest Exh.
40. Appellant Haji then led him and the mashirs to his house and produced a single barrel gun of '12 bore alongwith six live cartridges. He also produced empty cartridges which were fixed In the same belt. He also produced the licence for his gun. He prepared a mashlrnama of securing this Exh. 41 in the presence of the same mashirs. On 26-5-1973, he got the dying declaration of witness injured Shaman, recorded through a 3rd Class Magistrate and on 29-5-1973, he got the 164 statement of witnesses Manzoor, Andal, Galan and Muhammad Yousuf recorded by the Civil Judge and F. C. M., Khairpur. He there. After handed over the papers to the S. H.
O. Appellant9 Parial and Saindino had produced a hatchet and lathi, respectively, but they were not blood--stained. The S. H. O. Subsequently sent the blood-stained articles only, to the Chemical Examiner. The gun alongwith the empties etc. Were sent by him to the Ballistic Expert in separate sealed parcels. The appellants were thereafter sent up to the Court for trial.
4. According to the Ballistic Expert, Mukhtar Ahmed P. W. 4, he had received the two sealed parcels on 14-6-1973, from the Superintendent Police, Khairpur, for examination. On 25-7-1973, he opened the seals which were intact and found a '12 bore gun in one parcel, while the second parcel contained six crime empties of '12 bore which be marked as C-1 to C-6. There was also a miss-fired cartridge of '12 bore which he marked as M. He had also received five live cartridges of '12 bore for test. He held the necessary examination and gave his opinion :- "Six '12 bore crime empties marked as C-1 to C-6 have bsen examined and compared with the '12- bore test empties fired from the '12-bore Shot-gun No. 152-F and it is opined that crime empties marked as C-1 to C-6 had been fired from the above-mentioned Shot-gun.
(2) No opinion can be expressed on the misfired cartridge as to whether or not it had been hit by the striker of the above-mentioned Shot- gun." '
5. The autopsy of the dead body of Hajan was held by Doctor Abdul Sattar Shaikh, who found the following injuries on the deceased Hejan i-
(1) Six lacerated wounds each of 1'X 1'x bone deep on back of the right shoulder (wound of entrance).
(2) Five lacerated wounds each of 1' x 1" X bone deep on mid aaillary line of right side of chest.
(3) Two lacerated wounds with charring around each of 1" x 1" on right thigh.
(4) On internal examination t
(t) 8th, 9th and 10th ribs on tight side of the cheat on mid axillary line were broken.
(it) Pleurae on right side was ruptured and conjested.
(ltt) Right lung was ruptured and ecohymosed.
(ir) Blood vessels on the right side of chest was ruptured.
(v) Stomach was healthy and full of undigested food.
Injurrd Karim Bur son of Nabl Bus
(1) A lacerated fire-arm wound J" in diameter below the medial malleolus of right ankle as entry wound.
(2) A lacerated fire-arm wound Y in diameter 2 inches below the lateral malleolus of right ankle as exit wound of injury No. 1.
(3) A lacerated fire. Arm wound 2" x I" x bone deep on lower 1/3 of right fore-arm centrally as entry wound.
(4) A lacerated fire-arm wound 2" x J" on lower 1 /3' of right for-arm, dorsally as exit wound of injury No. 3.
(5) A lacerated firearm wound J" on right mid supra pubic region as entry wound.
(6) Two lacerated fire-arm wounds J" in diameter one inch away from each other on scrotum as exit wound of injury No. 5.
(7) Lacerated fire-arm wounds two in number J" x in diameter F away from each other on the right thigh. Injured Ejas son of Muhammad Panial
(1) Lacerated fire-arm wound 3 in number r in diameter one inch away from each other on left shoulder anteriorly.
(2) Lacerated fire-arm wounds 3 in number Y in diameter, half inch away from each other on left shoulder posteriorly.
(3) Lacerated fire-arm wounds 3 in number J inch in diameter half Inch away from each other on the top of left shoulder.
(4) Lacerated fire-arm wounds two in number J' in diameter, three inches away from each other on back of left side chest. injured Shaman son of Muhammad Yousuft
(1) A lacerated wound 2' x r x scalp deep on mid parietal region. r (2) A lacerated wound 1' x f x scalp deep on left occipital region. (3) A diffused swelling on left side of chest posteriorly.
Injured Mumtaz son of Rajl Karim Buz :
(1) Lacerated fire-arm wounds, eight in number I" in diameter, J" away from each other on lumber region at middle as entry wounds.
(2) Lacerated fire-arm wounds eight in number r in diameter, half inch away from each o;her on left lumber region posteriolaterally.
6. At the outset it may be stated, that the case as set out in the first Information report 11y the complainant Shahban within half an hour of the incident was that four witnesses who had received gunshot injuries had already been taken away to the hospital by Muhammad Yousuf, while the dead body of deceased Hajan Soomro was lying on the spot and further that the appellants were all seen and identified not only by him but by Manaoor Pathan, Andal, Ghulam Scomro and Muhammad Yousuf. He had also described the motive which the appellants bad, and according to him the appellants were all abusing and giving challenge that the nikah should not be performed.
At the trial, however, he did not attribute even the part of abusing and challenging, to the three appellants Le. Parial, Yar Muhammad and Salndino and gave an impression that they were only in company of appellant Hv~ji who first challenged and then started firing and as soon as witness Mumtaz was bit be himself went out of the otak straight to Luqman Police Post. According to him there being no police available at the outpost he was directed to go to the Khalrpur Town Police Station from where be brought the police and on reaching the va---dat it was found that Hajan was lying dead duo to gunshot injuries while Mumtaz, Karim Bux, Ejaz and Shaman had also received iojurics. It is thereafter that the injured were removed to the hospital by Muhammad Yousuf at the instance of the Police. It was only thereafter that he was taken to the police station where his first information ropoct was recorded. The first information report, however, shows that the A. S. I , Luqman Police Post recorded the complaint on a white sheet of paper and sent it to S. H.
O., Khairpur through Police Constable Mazhar Hussain for entering the same in the 154, Cf. P. C. Book there, while he proceeded to investigate the offence. As the S. H. O. Had already left the police station in investigation of anotber crime, the A. S.-I. At Khairpur Police Station after making due entries sent back the copy of the fiat information report through the some constable to A. S. I.
Manzoor Hussain of Luqman Police Post.,,. He also sent a copy of the first information report for handing over to the complainant. Even according to the A.-S.I. Manaoor Hussain himself, he had rushed to the rardat in the company of the first informant after recording his complaint and on reaching the varaat he found the injured witnesses alongwith the dead body of deceased Hajan lying there.
7. At the trial, apart from the evidence of the complainant th prosecution had relied upon the ocular testimony of P. W. 5, Muhammad~`t Yousuf, P. W. 6, Mumtaz A.I injured, P. W. 7, Karim Buz injured, P. WS. Manaoor Hussain P. W. 13, Ejaz injured and P. W. Shaman, who havin died during the proceedings, his lower Court deposition had bean brought on record. Surprisingly enough P. W. Muhammad Yousuf who was t bridegroom also did not say anything about appellants Saindino, Yar Muhammad and Parial having played any active part. He did not even allege that they abused on gave any challenge All that he said was that appellant Haji fired after giving a 'bakal' and the first gunshot hit Mumtaz, whereafter all of them got up, and he through fear slipped away out of the house. Not only this but he claimed to have accompanied the complainant to Kbairpur Police Station where from the Police came back to the seen of offence. It wait on coming back that they found that Hajan had did while Mumtas, Shaman, Ejaz and Karim Buz were lying injured. He then removed the injured to the Civil Hospital as he was asked by the police s to do. The other eyewitness Mumtaz All also did not attribute any overt act to the above-said three appellants. According to him only appellant Haji gave a challenge and started firing. He also saw Ejas, Shaman. (t;arsm Buz receiving injures by gunshot. About what happened thereafter his version is a little different inasmuch as he said that they all hid themselves in the adjoining room whereafter "the accused party got down from the roof and they tried to break open the door which we had closed by hiding ourselves." Whatever be the reason for this diversion, at least he cool not have possibly seen the persons who had come and were trying to break open the door. P. W. Karim Buz also had seen accused/appellant Haja alone. Abusing, challenging and firing. However, he is more specific and s =aid "He went on firing shots ; one gunshot hit Ejax also, I then found sad Haji got down stairs and I and my son ran into a room by walking onour hands and feet. One or two other persons were found by us inside theroom but I cannot say if they were injured. We bolted the door from inside. After some time accused Haji started breaking the door of that room and abus -d us and was inquiring as to who were those hiding inside."
Thus he did not allege that the three appellants came in the otaq. P. W.
Manaoor did not support the prosecution and stated that be ran out of the C house on the first shot and did not see as to who was the assailant. H. wasdeclared hostile and his lower Court statement was brought on the record and considered as evidence, under section 288 of the Cf. P. C. Even in that statement he had stated "Haji threatening us not to perform nikak He immediately started firing." He did not say anything about any overt acthaving been performed by the other three appellants. The evidence of the other two eye-witnesses Ejaz and Shaman with respect to these appellan~ is also no better, and whatever they have said. It is all against appellaB~ Hajialone. The question, therefore, arises whether these three appellantej could be said to share the common intention of the act of murder which is saidto have been committed by appellant Haji and so also that of causing gunshot injuries to others.
The trial Court in this regard came to the conclusion that the three appellants did share the common intention and were, therefore, constructively liable for what appellant Haji did, on the basis of an inference drawn from the conduct of the appellants as well as the circumstances of the case. By conduct the trial Court dxpressly meant the act of the four appellants coming over to the roof of the otak and abusing and threatening the marriage party, and by the circumstances of the case ft meant the possibility of having a common motive coupled with the fact of being present during sh9 4pating3u# firing by appellant Haji. It eras specifically said that it did not matter if the three appellants had not caused any injuries.
Obviously, the trial Court had fallen into an error in this respect both the aspects of the came referred to above are found only in the firs information report, which is not a substantive piece of evidence. Theme have been discarded by the eyewitnesses in their depositions given at the trial.
Application of section 34 if based on inferential evidence would possibly only, when that evidence is not compatible with any other npianation, exec pt that of complicity of the persons, against whom con emotive be bil,ty is intended to be established. Obviously, the three appellants Yar Muhammad, Parial and Saindina are not alleged to have come down from the roof. The allegations that they were armed with hatchets and latht shows that they could not have possibly caused any injury from the roof of the otok. There is no direct evidence of any pre-concert and the possibility that the gun may have been taken originally with the intention of creating a state of fear alone, could not be ruled out. The prosecution, E therefore, was burdened with the responsibility of proving that the three appellants knew that the son was brought with the intention of causing injuries and with no other intention. Such evidence is totally missing. Learned counsel for the appellants has pointed out from the medical eviden that there was charring caused by the 'se of the fire-arm on the person of the deceased Hajan. This could be possible only when firing was from a shorter distance than the one between the roof and the place where the deceased was sitting. There is no evidence on record to show that the three appellants referred to above had also come down from the robf, in the otak of Mumtaz. These three appellant, therefore, cannot be held constructively liable, for, the inference is not a necessary inference. The trial Court had failed to consider the evidence on record before it and had also erred in thinking that the allegations made in the first information report alone were sufficient for drawing such a conclusion.
8. In so far a the case of appellant Haji is concerned all the eye. Witnesses have consistently stated in their evidence that it was he who ca injuries from the roof of the otak of Mumtaz and that it was he alone w had cone down to the place where the witnesses had assembled. He w armed with the gun which is a licensed gun and was produced by him from hit house on 25-5-1973, at 9-45 a m.
Which was the day of his arrest and which fact was not denied by him in Court. Investigating Officer A. S. I. Manaoor Hussain, who bad rushed to the sane of offence immediately had prepared a masbfrnama of the scene of offence in the presence of mashfrs Muhammad Umar and Nasar Muhammad. He secured sit empty cartridges and one missed cartridge from the rardat. Mathtr Muhammad Umar, has corrobor fed his evidence that the said empty cartridges and one live cartridge were secured from the scene of offence and were sealed on the spot as pas marldrna-- w E:h.
23. The Ballistic Expert, Mukhtar Ahmed was examined in court and he deposed that he received the two separate parcels with their seals intact I one contained a ' 12-bore S B B L shot-son No. 152-8 and the second contained the six empties alongwith one missed cartridge of '12-bon As stated already his opinion was positive and to the effect that the crime empties were fired from the said gun. Learned counsel for the appellants has pointed out that the number of this gun as shown in the nucshknanw was different from the one given by the Ballistic E:pert. In the maahlrnana the number shown is 15.Z-P/K made In U. S. A. And not 152-F a stated by the Ballistic Expert. Mr. Nasiruddin; the learned counsel for the State, bo:etrar, pointed out that this could be due to a mistake because alter all the gun was a licensed gun and the appellant had produced him licence before the police. It seems the figure 2 was read u Z by the Investigating Officer when he secured the gun. The ocular testimony against the appellant Haji is therefore, fully corroborated by the'evidence of the Ballistic Expert, besides the medical evidence. Undoubtedly, it was he who caused the injuries to the deceased as well as to the other injured witnesses who implicate him. He is, therefore, solely responsible for the act which resulted in the death of deceased Hajan and injuries on the person of the witnesses, Karim Box, Mumtaz, Ejaz and Shaman Soomros. There being no conclusive evidence againd the three appellants Psrial, Yar Muhammad and Saindino, with regard to their sharing the intention of causing death or injuries. It is unsafe to hold them constructively liable for these ofenots. In the result, their appeal is allowed and they are acquitted. They are to be released forthwith unless required in some other ease. The conviction and sentences passed by the trial Court against appellant Hop maintained. Bis appeal is rejected. The sentence of death passed against him is also hereby confirmed.
B. A. a,Order aeardlrtalr.