' Both these appeals impugn the judgment dated 1-12-1998 passed by the learned Additional Sessions Judge, Khairpur in Sessions Case No,258 of 1989, whereby all the appellants/accused were convicted for the murder of deceased All Sher and Allah Wadayo under section 302 read with section 149, P.P.C.. Consequently, they were sentenced to life imprisonment alongwith fine etc. They were also sentenced to undergo various prison terms alongwith fines of committing the other offences with which they were charged under section 148 and sections 307, 326, 324 and 452 read with section 149, P.P.C. I propose to dispose of both these appeals through this judgment.
1. The brief facts of the matter per F.1.R. No,6 of 1986 lodged at Police Station Sobhodero on 16-1-1986 at 21-15 hours are that on the same day at 19-00 hours the complainant Rajab All alongwith his father All Sher, brothers Allah Wadhayo, Mattar alias Ghulam Nabi, his uncle Allandad, cousin Qurban and other family members were sitting in the courtyard of their house before a fire, when Ali Hassan armed with rifle, Usman armed with a kalashnikov and All Gul, Ghulam Qadir, Siddique, Sher Leemon, Gulab, Noor Muhammad, Sadiq and Panah all of whom were armed with guns appeared alongwith three unknown persons also armed with guns. Accused All Hassan asked the father of the complainant and P.W. Allandad to deliver the hand of Mst. Shahul to them otherwise the complainant party would be killed. Upon refusal of the complainant party to do so All Hassan tired with his rifle at Allandad, who fell down. Panah tired at Ali Sher whereafter the complainant party grappled with the accused and started fighting with them and gave hatchet injuries to All Hassan and caused injuries to other accused, due to which accused persons tired indiscriminately upon the complainant party. Complainant Rajab All sustained a fire-arm injury on his left arm, his brother Matter alias Ghulam Nabi, Allah Wadayo, his sister Mst. Mehnaz and Qurban also sustained gunshot injuries at the hands of the accused persons. Thereafter, the womenfolk brought the Holy Qur'an upon which the accused party went away raising slogans. The complainant went to Police Post Agra and lodged his report, which was recorded in the station diary and subsequently, incorporated in section 154, Cr.P.C. Book at Police Station Sobhodero.
2. After investigation the appellant/accused were challaned. N.B.Ws. Were issued against Muhammad Usman, which were returned with the endorsement that he had been killed in a police encounter. Consequently, the proceedings against the said accused were abated vide order, dated 13-4-1989, passed by the learned Additional District Judge, Khairpur. Similarly, N.B.Ws. Issued against Jummo alias Shahan and Sikoo alias Sikandar were also returned with the endorsement that they had expired and consequently, proceedings against these two accused also abated vide order dated 30-8-1989 passed by the same learned Judge. The appellants/accused were charged under sections 147, 148, 302, 307, 324 and 352 and with section 149. P.P.C. For committing the murder of the deceased as well as causing injuries to complainant Rajab Ali, Allandad, Mattar alias Ghulam Nabi, Mst. Mehnaz and Qurban to which they pleaded not guilty and claimed their trial.
3. The prosecution examined a number of witnesses including the eye-witnesses as well as official witnesses and so also the doctors, who had given the initial medical report as well as the post- mortem report of the two deceased.
4. Statements of the appellant/accused were recorded under section 342, Cr.P.C. In which they denied all the allegations levelled against them. However, they did not examine any witness in defence and neither examined themselves although a chance was given by the learner trial Court.
5. The learned trial Court accordingly framed the following points for determination:--
(1) Whether All Sher son of Nawab Allani and Allah Wadhayo son of All Sher Allani were murdered?
(2) Whether present accused persons trespassed in the house of complainant, formed unlawful assembly duly armed with deadly weapons and in prosecution of their common object used criminal force?
(3) Whether present accused persons in prosecution of their common object committed murders of All Sher son of Nawab Allani and Allah Wadhayo son of All Sher Allani?
(4) Whether present accused persons in prosecution of their common object caused injuries with fire-arms and Lathis to complainant Rajah, P.Ws. Mattar alias Ghulam Nabi, Allah Dad. Qurban and Mst. Mehnaz with intention to kill them?
(5) What offence if any has been committed by present accused persons?
6. The learned trial Court answered all the points Nos.! To 4 in the affirmative and consequently convicted the accused for the murder of the deceased and trespassing into the complainant's home and causing injuries to the P.Ws. And passed sentences against them as aforesaid.
7. In support of the appeals, Mr. Sher Muhammad Shaikh, has firstly, submitted that there is discrepancy between the F.I.R. And the deposition of the eye-witnesses. In this connection he referred firstly to the deposition of the complainant Rajab' Ali, who has stated that accused All Hassan tired at Allandad with a rifle who fell down then Panah fired with his gun at All Sher who also fell down and thereafter fired upon Allahwadayo, who fell down as did the complainant since the pellets had hit his left arm. The complainant has also deposed that Ghulam Nabi, Qurban and Mehnaz received fire-arm injuries as well. Then the accused persons forcibly entered the house in order to abduct Mst. Shahul, who is stated to be the bone of contention between the parties, but when they were confronted with the Holy Qur'an they went away raising slogans. In cross- examination, the complainant has admitted that the motive behind the crime in question was a matrimonial dispute between the parties and that all the accused belong to the same family and that the complainant part, as well as the accused party belong to the same village and all are Allani by caste. He has also admitted that although there were 12 houses in the village but no one came to the rescue of the complainant party and similarly none arrived from the adjoining village of Umer and Abdul Aleem Dahar. So also it has been admitted by the complainant that Mst. Shahul was not available at the scene of the crime but had gone to her uncle's village about 15 days prior to the incident. The witness also admitted that Mst. Shahul was residing with her family in the same compound where the complainant's house was located but none from her family are witnesses in this case although at the time of the incident the brothers and mother of Mst. Shahul were present in their house. It has also been admitted by the complainant that the father of Mst. Shahul had given her hand in marriage to their Sardar Muhammad Muquim Khoso who lived in Balochistan. He also admits that he could not say as to who had caused injuries to his sister Mst. Mehnaz and Qurban.
8. Next learned counsel has submitted that according to the deposition of P.W. Allandad appellant/accused Ali Hassan fired at him with a rifle, which hit him on the lobe of his ear and then Panah fired at Allahwadayo, Ali Sher and complainant Rajab Ali. So also other accused fired with their weapons, which hit Qurban Ali and Mattar alias Ghulam Nabi and Mehnaz. Under cross- examination the witness admits that he cannot hear or see properly for the past 8/10 years and further that Mst. Shahul's husband's name was not known to him nor his occupation or his village but only that he lived in Balochistan. The witness has voluntarily stated that Ali Hassan received injuries at the hands of the complainant party and also that on the night of the incident Mst. Shahul had gone with her brother to another village about 30 miles away.
9. Learned counsel has then referred to the deposition of P.W. Qurban Ali, who has repeated the contents of the F.I.R. In his examination-in-chief. Under cross-examination the witness admits that the complainant party had also injured accused party and that Mst. Shahul was declared as Kari and sent to their Sardar.
10. Consequently, per the learned counsel whereas the F.1.R. Records that All Hasan fired with a rifle at Allah Dad Bux and then Panah fired at All Sher with his gun and then indiscriminate tiring was made by the accused party, as a result of which complainant Rajab Ali, P. Ws. Ghulam Nabi, Qurban and Mst. Mahnaz sustained gunshot injuries, in his deposition the complainant has given another version viz. That Panah also fired upon Allah Wadahyo as well as complainant, Qurban Ali, Mst. Mahnaz and Ghulam Nabi. Similarly P.W. Allandad has also st:pnorted the version of the complainant Rajab Ali. Again per the learned counsel P.W. Qurban All has stated in his deposition that accused Panah had fired at All Sher as well as Allah Wadhayo. Consequently, per the learned counsel the deposition of these witnesses are contradictory and not worthy of reliance.
11. Secondly learned counsel has submitted that all the witnesses are relatives and hence their testimony is to be received with great caution unless it is corroborated by independent evidence.
For this proposition reliance is made on Muhammad Muslim v. Mazhar Malik 1999 SCM R 103. Again per the learned counsel there is enmity between the parties as the bone of contention is the hand of Mst. Shahul who was admittedly the wife of accused Panah. In support of this contention he has relied upon Jaffar Shah v. Mian Yahya Shah 1999 SCM R 20 as well as Dur Muhammad v. The State 1996 PCr.LJ 435.
12. Next learned counsel has contended that there were 12 houses in the village but it is quite strange as to why no one came to the rescue of the complainant party and so also no independent witness were produced by the prosecution which in the circumstances Of the case casts a shadow of doubt on the prosecution version. Further per the learned counsel in the F.I.R. It is nowhere mentioned as to where was Mst. Shahul at the time of incident but it appears that she was present at the house of the complainant party. However, in cross-examination the complainant has stated that on the night of the occurrence Mst. Shahul was not available in his house but had gone to the house of her uncle Fateh Muhammad in village Bozdar as her father had given her hand in marriage to their Sardar Muhammad Muqeem Khosoo who lived somewhere in Balochistan. This per the learned counsel against causes doubt in the prosecution version particularly as Rajab All and admitted in cross-examination that at the time of incident the mother and brothers of Mst. Shahul were available in the village and their house was in the same courtyard as that of his house.
13. Next learned counsel has referred to the testimony of Mohib Ali who is the Mashir of recovery and was declared hostile. Per learned counsel this witness has deposed that no empties or any other article were secured at the place of incident by the police in his presence. Under cross- examination by the learned A.P.P. The witness has denied securing of empty shells/cartridges as well as live bullets etc. Or that the police arrested the accused in his presence. However, he admitted under cross-examination to the learned counsel for the accused that the complainant Ali Sher and others are his relatives. Hence per learned counsel, the Mashirnama, which inter alia, records the recovery of 13 empties of gun, one empty of .303 rifle and six bullets of KK cannot be relied upon.
' Similarly per learned counsel the Mashirnama of injury only shows that Mst. Mahnaz was injured as per Exh.22/B.
14. Finally learned counsel submitted that the medico-legal evidence on record does not corroborate the ocular version. In this regard he has referred to the testimony of Dr. Rahim Bux who was Medico-legal Officer of Taluka Hospital, Qambar. He has opined that the complainant had received 5 injuries out of which injuries Nos.4 and 5 were caused by a hard and blunt substance whereas injuries Nos.1, 2 and 3 were caused by a tire-arm on the left forearm and left wrist joint.
Again the doctor has opined that the injuries received by Mattar as well as Mahnaz and Allah Dad are simple injuries which were caused by a hard and blunt substance. As regards Qurhan per the provisional certificate issued by him his injury appeared to have been caused by a fire-arm, however, this was reserved for expert opinion. Finally as regards Ali Sher and Allah Wadhayo their injuries were attributed to a rifle and gun respectively. Under cross-examination the Medico-legal Officer has admitted that when All Sher was brought before him, he had only suffered one injury caused by a fire-arm on the left side of his chest and there was no exit wound of such injury.
15. The doctor has further submitted under cross-examination that the injuries caused to Rajab Ali, Mattar and Mst. Mahnza could be self-inflicted because of their location. However, the injuries on the person of Allah Wadahyo and Qurban could not be self-inflicted because of the same reason.
16. As opposed to the deposition of Dr. Rahim Bux, learned counsel has referred to the deposition of Dr. Sadruddin, Medical Officer, Civil Hospital. Khairpur, who has stated that on 17-1-1986 he had received Allah Wadahyo and Ali Sher in an injured condition. The latter had expired as soon as he - reached Civil Hospital, Khairpur before any treatment could be given to him. Injured Ali Sher had expired on the same day at 00-50 a.m. Thereafter, he had conducted post-mortem examination of both the deceased the reports of which have been produced by him. According to these, as regards Allah Wadahyo, he had received one fire-arm injury on the right side of the abdomen which is the wound of entry and 3 fire-arm injuries also on the right side of the abdomen being wounds of exit. As regards the post-mortem of deceased Ali Sher he had noted 3 fire-arm injuries; the first one on the upper right arm which is the wound of entry and the second one also on the upper right arm being the wound of exit the 3rd one was located on the right nipple which was wound of, entry and exit. He has stated under cross-examination that these injuries were caused by pellets and not a bullet.
17. On the basis of the foregoing medico-legal evidence on the record learned counsel has submitted that there is contradiction between this and the ocular account since as far as the case of deceased Ali Sher is concerned Panah has been nominated as having shot Ali Sher with his gun in the F.1.R. Which has been supported by all the P.Ws. As well as by Dr. Sadruddin who performed the post-mortem and according to whom Ali Sher died of gunshot injuries. However, per Dr. Rahim Bakhsh these injuries were caused by a rifle. Consequently, per learned counsel though Panah could be held responsible for the death of Allah Wadahyo he could not be held responsible for the death of Ali Sher. Again as regards Allah Wadahyo, though, learned counsel has admitted that both the ocular version and medico-legal evidence support each other yet no ballistic examination was carried out on the gun allegedly recovered from Panah and he was acquitted in the section 13-D case registered against him. Similarly as regards Mattar, Mst. Mahnaz and Allah Dad per ocular version they received tire-arm injuries but according to medical evidence on record their injuries were caused by a hard and blunt substance such as a Lathi etc. And no one has been nominated in this regard and there was no recovery. However, although both these pieces of evidence are in accord in the case of Rajah All and Qurban no nomination has been made either in the F.I.R. Or in the deposition of the witnesses as to who had given them these injuries.
18. In view of the foregoing, per learned counsel the ocular evidence is not to be relied upon since this is not in accord with the medical evidence. So also admittedly there was matrimonial dispute over Mst. Shahul and all the witnesses are from the same family, whereas the incident took place in a village containing at least 15 houses and no independent witness was examined. Similarly per the learned counsel although the brothers and mother of Mst. Shahul were present at the time of incident, they were also not examined. Therefore, a false motive has been set up by the prosecution viz. Dispute over the hand of Mst. Shahul. For all the foregoing reasons learned counsel has prayed that these appeals be allowed and the appellants/accused be acquitted.
19. On the other hand Mr. Sher Muhammad Shar learned State Counsel has firstly submitted that as far as the case of Panah is concerned with regard to Allah Wadahyo all the P.Ws. Support each other and the F.I.R. So also the medical evidence corroborates the ocular version since both doctors are of the opinion that the single wound received by the deceased Allah Wadahyo was from a gun.
Similarly per the learned counsel with regard to Ali Sher all the witnesses support each other that Panah had shot him with a gun and so also both the doctors support each other that this was again a gun injury. Again with regard to Rajah All per learned counsel all the witnesses are consistent that Panah had fired at him and the wound was caused by a gunshot which is also supported by the medical evidence. So also as far as the case of Siddiq with regard to Qurban is concerned the ocular account as well as medical evidence corroborate each other viz. That Siddiq had tired at Qurban. Consequently, learned State Counsel has supported the conviction and sentences handed down to Panah and Siddiq whereas he has opined that as nothing has come on the record vis-a-vis the other appellants/accused, they should be acquitted.
20. 1 have heard both the learned counsel and my conclusions are as follows: ' So far as the case of Panah is concerned with regard to Allahwadayo, it would be seen that both the ocular version as well as the medical evidence on the record support each other inasmuch as all the prosecution witnesses have specifically nominated Panah as having fired the fatal shot from his gun at Allahwadayo and both the doctors have opined that Allahwadayo died due to a single gunshot injury on the right side of his body. It would also been seen that although. Mohib Ali, who is one of the Mashirs of the Mashirnama of place of incident viz. Exh.22/A has disowned the said Mashirnama entirely, the same does record that besides other articles 13 empties of cartridges one empty of .303 rifle and six live bullets of K.K. Were recovered. The said Mashir was declared hostile and cross-examined when he admitted that the complainant party are his relations as well as the accused party. However, in my view, the testimony of Mohib All cannot be relied upon inasmuch as the other evidence on the record does suggest that the recoveries as above mentioned were made particularly the case property, which includes 13 empty cartridges, one empty of .303 rifle and six bullets of K.K. Which is Exh.16 as well as deposition of Syed Sahib Shah, A.S.-I. At P.P. Agra viz. Exh.No,29 wherein he has clearly mentioned the recoveries of crime-empties, which could not be displaced in cross-examination. So also, in my view, the motive for the crime in question has been clearly established by the prosecution viz. The matrimonial dispute over Mst. Shahul. As far as the issue regarding independent witnesses is concerned, it may he observed that unless some mala fides can be attached to the testimony of witnesses who are inter-related, this cannot be rejected outright. In my view, there do not appear to be any mala fides in the present case as the incident was witnessed by as many as six witnesses who were the inmates of the house. Consequently, in my opinion, Panah has been correctly convicted by the learned trial Court for the murder of Allahwadayo: hence I do not find any reason to interfere in such conviction as well as the sentence hiaded down to him under section 302, P. P.C.
21. As far as the case of Panah with regard to Ali Sher is concerned learned counsel has submitted that there is some discrepancy between the medical evidence and ocular account inasmuch as Dr. Rahim has opined that the injury received by Ali Sher whs caused by a rifle whereas Dr. Sadruddin who performed the post-mortem examination has stated that it was caused by a gunshot. In this regard it would be seen that it was Dr. Sadruddin who carried out the post-mortem examination and consequently, he had a better opportunity to see the wound suffered by All Sher.
In my view, therefore, his opinion is more reliable since Dr. Rahim only had an opportunity to visually examine the deceased Ali Sher. I have already observed that the evidence of Dr. Sadruddin is supported by the ocular account which is worthy of credence. Consequently, in my opinion, the appellant Panah has again been correctly convicted under section 302, P.P.C. For the murder of Ali Sher.
22. As far as the other sentences handed down to Panah is concerned viz. Under section 148, P.P.C.
And sections 307, 326, 324 and 452 read with section 149, P.P.C. In my view firstly Panah has been correctly convicted under section 148, P.P.C. Because it can be said that while committing the murder of the deceased he also committed the offences of rioting armed with a deadly weapon.
However, there is no evidence at all that appellant Panah is a Thug within the meaning of section 326, P.P.C. Which defines this category of person to be one who is habitually associated with others for the purpose of committing robbery or child stealing by means of or accompanied with Qatl since there is no evidence on this account at all. Even Otherwise the punishment for being Thug has been prescribed under section 327, P.P.C. Viz. Imprisonment for life alongwith fine. Consequently, the punishment awarded to appellant Panah perhaps under section 327, P.P.C. Is set aside. As regards application of section 307, P.P.C. Which provides for cases in which Qisas for Qatl-eAmd shall not be enforced, I do not see as to how this section can be applied in the circumstances of the case. Accordingly I set aside the sentence as well as fine awarded to the appellant Panah under section 307, P.P.C.
23. As regards the offence under section 324, P.P.C. Which is attempt to murder, it would be seen that at least four prosecution witnesses viz. Complainant Rajab Ali, P.W. Allandad, P.W. Mst. Mahnaz and P.W. Ghulam Nabi had testified that Panah's third shot had hit Rajab Ali which is supported by the medical evidence on record viz. Deposition of Dr. Sadruddin who had stated that the injured had received five injuries and 3 of them were caused by a gunshot. Consequently, in my opinion, Panah has again been correctly convicted by the learned trial Court under section 324, P.P.C. And hence I have no reason either to interfere with the same or the punishment awarded thereto.
24. Finally with regard to punishment awarded to Panah under section 452, P.P.C. Again in my view, this was correct as it can be said that he had committed the offence of house-trespass after preparing to cause hurt and assault as he was duly armed and did commit the murder of the two deceased and caused injuries to the complainant Rajab Ali after trespassing into their houses.
25. Next, it is to be considered whether injury caused to P.W. Qurban can be attributed to the appellant Siddique. It would be seen in this respect that P.W. Qurban has testified that since Siddique had shot him with his gun. Although this is borne out by the medical evidence, however, there is no independent corroboration of Qurban's testimony against Siddique since none of the other P.Ws. Have implicated Siddique. It would be also seen that after the initial attack on the complainant party a free fight ensued between them and the accused party as a result of which P.W. Mahnaz, P.W. Mattar and P.W. Allandad received minor injuries, which have been authenticated by the Medical Officer as having been caused by a blunt weapon such as a Lathi. To the contrary, all the P.Ws. Have deposed that the injury received by Mst. Mahnaz. Allandad and Mattar as well as Rajab All were caused by gunshots. It has also come on the record through the evidence of the P.Ws. That the complainant party had caused injuries as well to the accused party. So also it would be seen that the incident occurred at about sunset and the accused allegedly resorted to indiscriminate firing. Consequently, it would he difficult to establish as to which of the accused tired at a particular person from the complainant party in the absence of independent corroboration. In these circumstances, I am not at all convinced that the injury caused to P.W. Qurban was at the hands of accused Siddique. Hence, I would acquit him of his conviction under section 324, P.P.C. So also there is nothing on the record to show that appellant Siddique had caused the murder of the deceased; accordingly, I would also acquit him of his conviction under sections 302/149, P.P.C.
Since, there s also nothing to show that either Siddique or the other co-accused had shared the common object with Panah of murdering the deceased or attempting to murder the complainant and/or Qurban. However, as Siddique's presence at the place of incident cannot be doubted for the reasons as recorded above. I would uphold the conviction and sentence handed down to him under sections 148 and 452. P.P.C. While setting aside his conviction under sections 307 and 326, P.P.C.
26. Finally, with regard to the cases of other appellants/accused viz. Sadiq, Leemq, All Gul, Sheroo, Noor Muhammad and Gulab, their presence at the scene of occurrence cannot be doubted in view of the testimony of all the P.Ws. From the complainant party, which is corroborative inter se.
However, it cannot be said that they murdered the deceased or had any intention of causing the murder of the complainant party since none of the P.Ws. Have stated anything in this regard viz. Whether these accused caused any injuries to the complainant party as there is only a general allegation of indiscriminate firing etc. So also there is nothing on the record to show that they shared the common objective with Panah of murdering the deceased or attempting to murder the other members of the complainant party. Furthermore, in the case of only the two deceased.
Complainant, Rajab All and P.W. Qurban has (sic) it been conclusively established that they received gun shot injuries and that appellant Panah caused these injuries to the deceased as well as Rajab Ali. To the contrary it has come on the record that the injuries suffered by Mst. Mahnaz, Mattar and Allandad were caused by a hard and blunt substance. Consequently, the conviction of these accused and the punishment handed down to them under sections 302 and 324 read with section 149, P.P.C. Is set aside and also that under sections 307 and 326, P.P.C. However, I would uphold their conviction under sections 148 and 452, P.P.C. Both these appeals are accordingly disposed of in terms of the foregoing orders. If the appellants/accused have completed their sentences they shall be released forthwith if not wanted in any other case.