1. SAJJAD ALI SHAH, J.---Appellants Fazal Muhammad, Pir Bux and Bobro have filed this appeal against the judgment dated 30-6-1976 passed by the 2 Additional Sessions Judge, Larkana whereby they have been convicted for offences under sections 302 and . 307/34, P. P. C. And sentenced each to imprisonment for life and R.
1. For 7 years respectively for having committed murder of Didar Ali with gunshot and hatchet injuries and attempt to commit murder of complainant Imdad Ali. Appellants were tried along with their co--accused Noor Muhammad son of Muhammad Sachal Mangrio, who was acquitted by the trial Court. There is also connected Criminal Jail Appeal No. 200/76 against the judgment dated 30-6-1976 passed by the trial Court whereby appellant Fazal Muhammad has been convicted under section 13-E appeal of the Arms Ordinance and is sentenced to R. I. For three years. Since this also arises from the same incident and evidence is common, we propose to dispose of both the appeals by this single judgment.
2. Shortly stated prosecution story as mentioned in F. I. R. Is that deceased Didar Ali had a hotel and a Fuelwood Shop on Fish Market Road and close to that Maula Bux, brother of deceased has an Inn (Musafir Khana) and a washing shop. Complainant Imdad Ali who is brother of deceased Didar Ali taught as English teacher in Dini Madrassa and Middle School situate in the same vicinity. On the day of incident, i.e. 4-9-1975 at about 9.00 p.m. Deceased Didar Ali after closing his hotel was on his way towards their house along with complainant Imdad Ali and their nephew P. .W. Nisar Ali son of Maula Bux. When they reached the Channa Street in which their house is situate at about 9-15 p.m.
3. They heard a challenge and saw in the light of bulb in electric pole nearby, Fazal Muhammad Qureshi, Babro alias Din Muhammad Qureshi and one unidentified person. Out of them Fazal Muhammad Qureshi and unidentified person were armed with guns while Babro alias Dinnd Muhammad bad a hatchet. Immediately Fazal Muhammad abused the complainant and fired from his gun at him. Complainant ducked and missed the shot which hit the wall. Due to fear Didar Ali and Nisar Ali ran towards their house in the street. Fazal Muhammad and that unidentified person opened fire from their guns at Didar Ali who fell down injured. Babro alias Din Muhammad went near and inflicted hatchet injuries on the head of Didar Ali. On gun reports P. W. Muhammad Malook Mirani came out from his house and saw the incident. The assailants raising slogans ran away towards Jafri Imam Bargah along with their weapons and while doing so they were seen by Ghulam Nabi Channa. Who was passing by. After the departure of the assailants complainant went near and found Didar Ali having expired in consequence of gunshot and hatchet injuries. After the incident so many neighbourers had come to the spot after hearing the gun reports and they were apprised of the incident and were given names of the identified assailants. Complainant after leaving others near the dead body repaired to Town Police Station, District Larkana where he lodged F. I. R. At 9-45 p.m. On the same day within half an hour of the incident. The distance between the police station and the place of occurrence is three furlongs: The motive, as stated in F.
4. I. R. Is that appellant Fazal Muhammad suspected his wife Mst. Mehrunisa to be on criminal intimacy with the complainant. She had filed a suit for dissolution of marriage in the civil Court against her husband Fazal Muhammad and the hearing of that case was fixed in the Court on that day.
5. P. W. 11 Abdul Fatah, S. H. O. Town Police Station after registering the report came to the scene of offence. He saw dead body of Didar Ali lying in a street/in Channa Muhalla. As it was night he posted guard on the dead body and did not allow any person to enter the street. He examined P.
6. Ws. Nisar Ali, Ghulam Nabi, Muhammad Malook and Inayat Shah, who were present there. In tire morning he prepared mashirnama of vardat in presence of mashirs Rasool Bux and Muhammad Ayub. He also secured four empty cartridges of '12 bore out of which three were secured from one place and the fourth was secured at a distance 10 paces from the dead body. He secured blood from the vardat. Empty cartridges and blood were made into different sealed parcels. He noted in the mashirnama the presence of bulb in the electric pole at the scene of offence and the marks of firing in the wall of house of Amjad. After preparing the inquest report he despatched the dead body to the hospital for autopsy. On 9-9-1975 he arrested Fazal Muhammad, Pir Bux and Noor Muhammad who were sleeping on the bank of abandoned watercourse in front of Otak of Fazal Muhammad in village Fort Chandia. He secured unlicensed single barrel gun from appellant Fazal Muhammad which was lying under his head. Another single barrel gun was secured from Pir Bux which was his licensed gun. The S. H. O. Also secured plastic bag which contained licence of the gun in the name of appellant Pir Bux and three live cartridges, two of which bore the same marks "Jam" made in Poland which were found on empty cartridges recovered from the spot. S. H. O. Also secured one hatchet from acquitted accused Noor Muhammad which was not stained with blood.
7. He sealed these articles. Appellant Babro alias Din Muhammad was arrested from the Bus stop in Dokri. On 10-9-1975 the S. H. O. Arranged for identification test of Pir Bux and Noor Muhammad in Tapedars Hall which was supervised by Mr. Bashir Ahmed, Head Munshi and Second Class Magistrate. On the same day he examined Mehrunisa wife of appellant Fazal Muhammad. On 19-9- 1975 he examined Shabban Shaikh who produced licence for the gun which was recovered from appellant Fazal Muhammad. The S. H. O. Made an entry in the register against appellant Fazal Muhammad for offence under section 13-D of the Arms Ordinance and sent it to concerned taluka police station for registration of F. I. R. He sent the sealed parcels to the Chemical Examiner and Ballistic Expett. After completing the other steps of the investigation, challan was presented in the Court on 4-10-1975.
8. Prosecution has examined 11 witnesses in support of its case. P. W. 1 Bashir Ahmed, Head Munshi and Second Class Magistrate has deposed that he held identification test of appellant Pir Bux and acquitted accused Noor Muhammad on 10-9=1975 through witnesses Imdad Ali, Muhammad Malook and Ghulam Nabi. He observed the necessary formalities of the test and the witnesses correctly picked out Pir Bux and Noor Muhammad P. W.
3. Mumtaz Ali is Corpse bearer. P. W. 4 Ghulam Nabi Shah tapedar has prepared sketch of vardat Exh.
8. P. W. 5 Imdad Ali, P. W. 6 Nisar Ali, P. W.7 Muhammad Malook have been examined as eye-witnesses. Out of them P. W. 7 Muhammad Malook was declared hostile as he did not support the prosecution case. P. W. 8 Ghulam Nabi has been examined as a witness who saw the assailants after the incident while they were running away. P. W. 9 Rasool Bux and P. W. 10 Arz Muhammad have been examinad as mashirs. P. W. 11 Abdul Fateh S. H. O. Has investigated the case. Doctor Muhammad Amin has been examined as P.
9. W.
2. He conducted post-mortem examination on the dead body of Didar Ali on 5-9-1975 at 9-00 a.m. On external examination he found the following injuries:-- "(1) Lacerated punctured wound 1" x 1" abdominal cavity deep on anterior. Lateral side of right lumber region 1----- above the iliac crest. Edges were barred (entry wound).
(2) 7 lacerated punctured wounds each 1/3' in diameter on Antero-lateral aspect of right thoric region 3--- below and 5--- lateral to right nipple (entry wound).
(3) 1 abrasion 1----- x 1--- on Anterior aspect on right side of the cheat 2----- above and lateral to right nipple.
(4) One abrasion 1--- x ----- on lateral aspect of right elbow joint.
(5) 8 lacerated punctured wounds on Antero-superior aspect of left shoulder joint (entry wound).
(6) One abrasion on lateral aspect of middle 1/3rd of left upper arm.
(7) One incised wound 6--- x ----- x brain matter deep on posterior aspect of occipital region of the skull.
10. On internal examination he found the following injuries :
(1) Head.-Scalp and skull cut as injury No. 7. Membrane and brain matter also cut as mentioned in injury No. 7.
11. Chest.-Thorax wall punctured left ribs. 2, 3, 4, 5, 6 and 7 fractured Aneriorly. Right ribs Nos. 5, 6 and 7 fractured anteriorly. Both pleura lacerated. Right and left lungs lacerated.
12. Abdomen.---Abdomenal wall lacerated as mentioned in injury No. 1. Pertonime lacerated.
13. Abdominal cavity full of blood stomach lacerated and contained digested food which was also seen in abdominal cavity.
14. Pancreas.---Lacerated. Small intestines lacerated. Large intestines lacerated.
15. Liver.---Lacerated."
16. From external and internal examination of the dead body he is of the opinion that the death occurred due to haemorrhage and subsequent shock caused by the injuries mentioned above. The injuries Nos. 1 to 6 are caused by discharge from fire arm and injury No. 7 is caused by some sharp cutting substance such as hatchet. All injuries are. Antemortem. The injuries are sufficient to cause death in ordinary course of life.
17. Before the trial Court the defence of the appellants was total denial of allegations levelled by the prosecution. They proclaimed innocence and claimed that they had been 'implicated in this case falsely on account of enmity. Appellant Babro alias Din Muhammad has further produced true copy of F. I. R. Filed by Bashir Ahmad and affidavit of Inayat Ali Shah sworn before the Resident Magistrate on 31-3-1976. They have not examined any witness in defence.
18. We have heard the arguments of the learned counsel appearing for both sides and we have carefully examined the record in this context.
19. In this case prosecution has furnished ocular testimony of three witnesses corroborating evidence of P. W. 8 Ghulam Nabi, who claims to have seen the assailants while running away from the spot after the incident and identified two of them, circumstantial evidence of recovery of four crime- empties from the var4at and two guns from appellants Fazal Muhammad and Pir Bux with positive report of Ballistic Expert to the effect that three crime empties were fired from the gun of appellant Fazal Muhammad and one from the gun of- appellant Pir Bux. Prosecution has also produced the evidence of identification test in which P. Ws. Imdad Ali, Nisar Ali, Muhammad Malook and Ghulam Nabi have correctly picked out appellant Pir Bux and acquitted accused Noor Muhammad with the exception of Imdad Ali who had only picked out appellant Pir Bux. Motive has been testified by the complainant Imdad Ali.
20. Out of three eye-witnesses P. W. 5 Imdad Ali is brother of the deceased and P. W. 6 Nisar Ali is son of Maula Bux who is brother of the deceased. The third eye-witness namely. P. W. 7 Muhammad Malook is not related to the complainant party and is Mirani by caste. He did not support the prosecution case and was declared hostitle. It is the case of the prosecution that on the night of incident at about 9-15 p m. Complainant and P. W. Nisar Ali were in the company of the deceased and were on their way :home when the attack was made. Complainant Imdad Ali has explained that on the day of incident at 5 p.m. He went to the shop of deceased Didar Ali, which is situate in Fish Market where his nephew P. W. Nisar.Ali was already present. At about 9 p.m. Which was usual time for deceased Didar Ali to shut his shop, all the three were returning home. P. W. Nisar Ali is working as Assistant Accountant in F. I. A. Hotel, Larkana which is at a distance of about one mile from the hotel of the deceased. It is stated by P. W. Nisar Ali that after his duty he used to come to the hotel of deceased to assist him. In these circumstances, the presence of these two eye- witnesses at the spot at the time of incident cannot be doubted. It is needless to say that the incident took place, in the street near their joint house: P. W. 7 Muhammad Malook who is not related to the complainant and was declared hostitle has admitted the presence of these two witnesses at the time of the incident. The house of these witnesses is in the same street opposite the house of the complainant: P. W. 11 Abdul Fateh Investigating Officer who came to the spot after registering the F. I. R. Has admitted the presence at the, spot of P. W. Nisar Ali and had recorded his statement there. One other important factor is that F. I. R. Was registered at the police station within half an hour from the time of the incident and the name of P. W. Nisar Ali is mentioned therein. All these circumstances convince us that these two witnesses were present at the spot when the incident took place. In any case we shall have to look for corroboration from independent sources to rely upon their evidence.
21. There are, some discrepancies in the evidence of the witnesses which are noteworthy. First of all the complainant in F. I. R. Has clearly stated that there were three assailants from whom two were identified as Fazal Muhammad Qureshi and Babro alias Din Muhammad Qureshi. The third assailant was unidentified. Out of them Fazal Muhammad and the unidentified assailant were armed with guns while Babro. Alias Din Muhammad was, armed with a hatchet. He has stuck to this version before the trial Court. However, P. W. 6 Nisar Ali was confronted with his police statement where he had stated that he had seen four accused persons at the time of incident out of whom he identified only two. It is for that reason that during the investigation Noor Muhammad Mangrio was also arrested, but the trial Court acquitted him as there was no other evidence available to connect him with the commission of crime. Complainant Imdad Ali had not stated in F. I. R. That after shot was fired at him and it missed him, he ran to the Otak of Salim Mirani from where he saw the incident. He has been cross-examined at length on this point. We do not consider it as very material for the reason that F. I. R. Is not supposed to be as elaborate document to contain all the minute details. The assertion of the complainant that Fazal Muhammad had fired at hirer and he ducked and, saved himself is substantiated by the Investigating Officer who has stated and also noted in the mashirnama of vardat Exh. 15 holes caused by gun pellets on the wall of the house of Amjad. One crime empty was recovered from near that place and three crime empties were recovered from the place near the dead body. Therefore, the omission stated above oes not prove that this witness has not seen the incident. The complainant was also cross-examined on the point that in the trial Court he had mentioned two vardats, which assertion is that conflict with the version of F. I. R. The details about these two vardats also stand sufficiently explained in the statement of the complainant before the trial Court that the firs vardat is the place where he was fired at and the second vardat is the place where deceased Didar Ali was fired at. The mashirnama of vardat as well as sketch further explained that the incident took place in the same street and the first shot was fired at the complainant at the inter section of the two streets where electric pole is fixed. The electric pole is fixed according to the sketch right at the corner of the two streets out of which one is main road and the other is side street in which the incident took place. Sketch further shows marks on the wall of the house as result of the first shot fired at the complainant to be adjacent to the electric pole, but inside the side street. P. W. Nisar Ali has stated in his evidence that after the first shot was fired the complainant threw himself on the ground and remained still and when the assailants ran after this witness and deceased the complainant ran to the otak of Salim Mirani from where he saw further incident. Before the committing Court this witness has stated that complaint Imdad Ali remained on the ground lying down till the assailants went away from the spot after their attack on the deceased. The evidence of this witness in the trial Court was being recorded after near about one year and when he saw the attack on the deceased he was near the door of his own house which is sufficiently away from the mouth of the street where complainant had fallen down. This contradiction is trivial in nature and stands explained in the circumstances stated above. Other contradictions in the evidence of this witness relate to the identification test, which shall be adverted to later on.
22. It is claimed that incident was seen by the eye-witnesses in the street light which was provided by a bulb in the electric pole. This electric pole according to the sketch is fixed on the corner of inter section which is the joining point of the main street with the side street in which the incident is said to have taken place. According to the mashirnama of vardat first shot was fired at complainant at the inter section arid the pallet marks have also been found on the wall: of the house which is on the same corner where electric pole is fixed. Dead body was found at a distance of about 8 to 10 paces from the electric pole. The sketch also shows the distance of 36 feet from the place where the dead body was lying and the door of the house of the complainant from where P. W. Nisar Ali saw the incident. In the circumstances we hold that incident took place in the proximity of the electric pole and could easily be seen by the witnesses due to the availability of sufficient light from the electric bulb.
23. These two eye-witnesses are further corroborated by P. W. 8 Ghulam Nabi who came to the spot and also saw the assailants running away. This witness is related to the complainant as the deceased was maternal uncle of the wife of this witness. He was contradicted with his 161 statement run which he had stated that he had seen four persons out of whom two had guns and two were armed with hatchets. He had also stated that at the time of incident he was going to the house of his father-in-law which was situate at a distance of 5 or 6 paces from where Didar Ali was murdered. We don't rely upon the identification part of the evidence of this witness for the reason that he has not pin-pointed the place where be saw the assailants while running away and also has not said as to in what light he identified them. He can be relied upon as witness for corroboration because he was present at the spot and his statement was recorded by the Investigating Officer who came to the vardat. He has given the same facts of the incident as the two eye-witnesses.
24. This evidence is further supported by the medical evidence, according to which seven injuries were found on the person of the deceased, out of which six are as a result of gunshots and one is incised wound on the head. Medical evidence is consistent with the version of the eye-witnesses who state that first gunshots were fired at the deceased and then Din Muhammad inflicted hatchet injuries on the head of the deceased. Doctor has opined that injuries of deceased were caused by three shots and the abrasions were also the result of these shots. It w contended that as per medical evidence the injuries caused by gunshots were on the front side while the eye-witnesses have stated that deceased was running and was chased by the assailants when they fired at him.
25. Evidence of the doctor shows that he has only expressed his opinion that it was possible that deceased was facing the assailants when injury No. 1 was caused. But he has not said so about the other injuries. Medical evidence also snows that there was charring on injury No. 1. It is the case of the prosecution that appellants Fazal Muhammad and Pir Bux had both fired from their guns at the deceased. It is not the case of the prosecution that both appellants) were together side by side at the time of firing at the deceased. It is, therefore, possible that appellants were at some distance from each other when they fired and that explains the fact that there was no charring on other injuries. There is nothing in medical evidence to show that these injuries could not be sustained when shots were fired from the sides. Secondly it is possible that the deceased while running might have turned back to see what was happening and he was shot at. We, therefore, hold that the medical evidence supports the prosecution version in all material particulars of the incident.
26. We rule out of consideration the evidence of the identification test for the reasons that firstly Mr. Bashir Ahmed, Head Munshi and Second Class Magistrate who had supervised the said test has admitted that police had brought before him the accused persons and the witnesses together for the purpose of identification test. Secondly that he had mixed up only 6 dummies with, two accused persons, which proposition is much less than 9 or 10 to one, as laid down in Qaim and others v. The State (PLD 1961 Kar. 728). Thirdly that neither in F. I. R. Nor in the earlier statements of the witnesses claiming to have identified the accused, description of such unidentified accused persons, has been given. The identification test, therefore, does not satisfy the legal requirements and as such, we do not propose to rely upon it as a good piece of evidence.
27. The report of the Ballistic Expert Bxh. 22 on the record is to the effect that three crime empties were fired from the gun No. 9921 which was recovered from the appellant Fazal Muhammad and one crime empty was fired from gun No. 28880 recovered from Pir Bux. Recovery, of crime empties from the spot is supported by P. W. 9 Rasool Bux mashir who is of a different caste from the complainant.
28. He has admitted to be resident of Lahori Mohalla which is at a distance of one mile from the place of vardat. According to him he was passing by from the street when he was invited by the police to act as mashir in the case. It was suggested to this witness that deceased Didar Ali was brother of his mother-in-law but he has denied that suggestion. There is nothing in the evidence of this witness to suggest to us that he is partisan and untrustworthy.
29. The recoveries of the guns and hatchet from the assailants are supported by P. W. 10 Arz Muhammad mashir who is Brohi by caste and is not related to the complainant 'party. He is also a resident of Lahori Mohalla and was in the Fish Market when he was picked up by the police in a jeep at about 11 or 12 p.m. When police party was going to village Fourth Chandia to arrest the appellants. Criticism was made on this evidence on the ground that witness from the locality was not taken by police to attest the recoveries. It is given in the evidence that the village of appellant Fazal Muhammad where they were arrested consisted of only eight or ten houses hence, the police party took the mashirs from the town. There is nothing in the evidence of this witness Arz Muhammad mashir to suggest that either he was related to the complainant or he has given false evidence to incriminate the appellants. As stated above the --guns were recovered from them and also live cartridges hearing the same mark 'Jam' as was found on the crime empties recovered from the spot. We, therefore, accept this evidence as satisfactory.
30. So far the motive is concerned, the complainant has stated that appellant FazalMuhammad suspected him to be on criminal intimacy with his wife Mst. Mehrunisa. He has also stated that Mst.
31. Mehrunisa had filed a suit for dissolution of marriage against Fazal Muhammad. Appellant Fazal Muhammad thought that complainant was responsible for creating a rift in his house. It was contended that if this motive was correct then the appellant and his associates would not have spared the complainant and would have killed him. What really appears from the examination of the record of this case is the fact that the attack was made on the complainant at the very outset when the appellant fired his first shot. At that time complainant, deceased Didar Ali and P. W.
32. Imdad Ali were together immediately after the first shot went amiss these three persons must have run in panic and since it was night the assailants might have followed complainant's brother Didar Ali in the belief that he was the intended victim, hence other shots were fired at Didar Ali and he was also given hatchet injuries by Din Muhammad. In the absence of this motive we cannot find any other possible reason for the complainant party to falsely implicate the appellants: There is no such enmity suggested to these witnesses in the cross-examination. The only suggestion made to these witnesses in the cross-examination is that P. W. Muhammad Ayoob who has attested mashirnama of vardat is maternal uncle of appellant Din Muhammad but no plausible story has been put forward as to what enmity Din Muhammad had with Muhammad Ayoob and why the complainant party would falsely implicate the appellants at the instance of Muhammad Ayoob. It.
33. Would not be out of place to mention that appellants Fazal Muhamad and Din Muhammad are not related to each other although they belong to same caste Qureshi. Appellant Din Muhammad has filed a copy of F. I. R. Which purported to have been filed by one Bashir Ahmed son of Molvi Muhammad, Ismail. In this F. I. R. Allegation is made that complainant had left his household- articles in the house of Muhammad Ayuh Qureshi which were stolen at night. Four persons have been named in F.I. R. As accused and one of them is named as Rustam alias Babro son of Muhammad Moosa. Appellant's name is Babro alias Din Muhammad son of Muhammad Moosa according to record of this case. Although the record does not show that apppellant Babro has any other name or he is also known as Rustam alias Babro but since father's name is common at both places, it can be said that he may be the same person. Appellant Babro has also produced affidavit of Inayat Ali Shah whose name appears in F. I. R. Of this case as one of the persons who came to the spot after hearing the gun reports. In the affidavit Exh. 28 Inayat Ali Shah has stated that complainant told him that there were three assailants out of whom one was Fazal Muhammad and the other two were unidentified. He has also stated in the affidavit that Muhammad Ayub came to the spot and whispered some thing in the ears of the Sub-Inspecto4 who came and announced that Babro alias Din Muhammad Qureshi caused injuries to the deceased with hatchet blows. The affidavit of Inayat Ali Shah is sworn on 31-3-1976. This witness was not examined by the prosecution for the obvious reason that he was hostitle and he preferred to give an affidavit because he avoided being subjected to cross-examination which would have revealed the true facts. We do not believe the story given in the affidavit.
34. Since we are accepting the evidence of the eye-witnesses when it I corroborated by other evidence coming from independent sources we feel that the case against the appellant Fazal Muhammad is proved beyond doubt because his participation in crime is fully supported by recovery o A his gun and the positive report of the Ballistic Expert. We give benefit of doubt to appellant Pir Bux for the reason that there is no evidence to prove that he was identified at the spot in the face of the fact that w have rejected the evidence of the identification test. Neither in F. I. R.
35. Nor in the earlier statements of the witnesses who claim to have seen B this appellant at the spot, is given his description. We also give benefit of doubt to Babro alias Din Muhammad for the reason the hatchet recovered from his possession was not stained with blood as such, the circumstantial evidence against him is not incriminating in nature and does not connect him with commission of crime. In the result we dismiss appeal of Fazal Muhammad son of Gul Muhammad and allow the appeal in respect of Pir Bux and Babro, whose convictions and sentences are set aside. We also direct that they may be released forthwith if they are not wanted in any other case. Appeal is disposed of accordingly.