2016 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

Through captioned appeal(s), appellants have assailed the judgment dated 07th August 2013, recorded by learned 2nd Additional Sessions Judge, Shaheed Benazirabad, in Sessions case No.220 of 2006 "Re-S/v Inayatullah and others" whereby the trial court convicted appellants Inayatullah, Azizullah, Rehmatullah and Muhammad Morial @ Morio for offence under section 302(b), Tazeer/149 read with section 114, P.P.C. to suffer life imprisonment and to pay the compensation of Rs.100,000/- each on realization to be paid to legal heirs of deceased Nabi Bux and in case of failure thereof to suffer S.I for six months more. The appellants Ameen and Inayatullah were also convicted for offence under section 380, P.P.C. and sentenced them to suffer R.I for two years. The appellants Inayatullah, Azizullah, Rehmatullah, Morio, Ameen were also convicted and sentenced as under:- (1) Under section 337-A(i) to undergo one year (2) Under section 337-(iii) to undergo three years (3) Under section 337(iv) to undergo five years (4) Under section 337-F(i) to undergo one year (5) Under section 337(vi) to undergo five years (6) Under section 337-L(2) to undergo two years and to pay Daman Rs.25,000/- each which, on realization, to be paid to injured persons. Appellant Kabeer was also convicted under section 148, P.P.C. and sentenced to undergo R.I for three years and to pay fine of Rs.50,000/-. All sentences were ordered to run concurrently and benefit of section 382(b), Cr.P.C. was extended to the appellants.

2. Succinctly, relevant facts of the prosecution case are that complainant Umed Ali lodged FIR with PS Mari Jalbani stating therein that he owns 15 acres of land in Deh Belo Mari; there is an Otak, where water machine was installed. During the intervening night of 6th and 7th August 2006 the complainant due to rain stayed in his village and when early in the morning he went to his Otak where he found that the lock of the room of his Otak was broken and articles were lying scattered and further he found that two pairs of male clothes and 'Pannas' (instruments) of machine and other eatable articles like sugar, ghee were missing and were stolen away. The complainant saw the foot prints of two thieves and narrated the facts to his relatives on which his brother Nabi Bux, Muhammad Mithal, Hussain Bux, Fida Hussain, Shabbir Ahmed, Fazal Hussain, Muhammad Hassan and Mushtaque came there, who tracked the foot prints of two thieves which led to the house of Morio Khaskheli and disappeared there. The complainant party asked Morio Khaskheli either he give the way of the foot prints of thieves outside their houses or give faisla. It is further stated in the FIR that accused Morio and others promised to give faisla or to give the way of foot prints, the complainant party waited there. At about 4.00 p.m., the accused Morio, Azizullah, Inayatullah, Ameen, Rehmatullah, along with 20 unidentified persons came there who were armed with hatchets and lathis. Amongst whom Morio and his son caused hatchet blows to the brother of the complainant namely Nabi Bux and Shahbir Ahmed and the rest of accused persons caused blows to the witnesses. The complainant raised hue and cry; the accused went away. Thereafter the complainant noticed his brother Nabi Bux having sustained hatchet blows in his head and blood was oozing; he was unconscious. Injured Shabir Ahmed also sustained hatchet and lathis injuries on his head; blood was oozing and was unconscious. Muhammad Mithal had also sustained lathi injury on his back side, Hussain Bux had lathi injuries, Fida Hussain had sustained hatchet injury, Mushtaque had hatchet injuries on his head, Fazal Hussain was also having hatchet injury, and Muhammad Hassan had lathi injuries. The complainant then, arranging the tractor trolley, took the injured to Civil Hospital Sakrand where doctor referred him to PMC hospital, Nawabshah. Due to night complainant remained with the injured in the hospital and on the next day i.e. 8.8.2006 lodged the report at PS Marri Jalbani at 12.00 Noon. During the treatment injured Nabi Bux succumbed to his injuries.

3. It is further revealed that after lodgment of FIR; police conducted the investigation and having completed investigation submitted the challan/charge sheet whereby sending up accused persons namely Inayatullah, Azizullah, Rehmatullah, Muhammad Amin and Muhammad Morial to face their trial while showing accused persons Jalo, Parwaiz and Kabir as absconding.

4. Compliance of section 265(c) of the Code was made by supplying copies to the accused persons as Ex.1; charge was framed against said accused persons at Ex.4 to which they pleaded not guilty and claimed their trial through their pleas, recorded as Ex.4-A to 4-E respectively.

5. In order to prove the case, prosecution examined following witnesses:

1. PW-1 Complainant of the case namely Umed Ali at Ex.5. He produced FIR at Ex.5-A;

2. PW-2 Muhammad Hassan at Ex.63. PW-3 Mithal Gudaro at Ex.74. PW-4 Hussain Bux at Ex.8 Meanwhile, accused Kabeer was arrested and sent up to face his trial. Accordingly, the trial court supplied copies to him at Ex.9 and amended charge was framed against all accused persons at Ex.11 to which they pleaded not guilty and claimed their trial through plea(s), recorded as Exs.11-A to 11-F respectively.

6. The prosecution, in order to substantiate charge, examined following witnesses:- PW-1 complainant Umed Ali at Ex.14 PW-2 Muhammad Hassan at Ex.15 PW-3 Hussain Bux Gudaro at Ex.16 PW-4 Fazal Hussain Gudaro at Ex.17 PW-5 Huzoor Bux Gudaro at Ex.18. He produced mashirnama of injuries of (8) injured persons at Ex.19-A to 18/H, mashirnama of place of incident at Ex.18/I, another mashirnama of place of incident at Ex.18/J and mashirnama of dead body at Ex.18/K PW-6 Ghulam Hussain at Ex.20. He produced mashirnama of inspecting dead body at Ex.20/A, inquest report at Ex.20/B PW-7 Sher Muhammad at Ex.21. He produced mashirnama of clothes of deceased at Ex.21/A PW-8 Muhammad Achar at Ex.22. He produced mashirnama of recovery of hatchets at Ex.22/A PW-9 HC Abdul Ghani at Ex.23. He produced mashirnama of arrest of accused and body search of accused at Ex.23/A PW-10 SIP Muhammad Tahir Khanzada at Ex.24 PW-11 SIP Noor Muhammad Mari at Ex.25.He produced Lash Chakas Form at Ex.25/A, receipt whereby he handed over the dead body at Ex.25/B, letter submitted to concerned Magistrate at Ex.25/C, mashirnama of arrest of accused Muhammad Morial at Ex.25/D, roznamcha entry at Ex.25/E, chemical report of blood stained clothes at Ex.25/F PW-12 Dr. Sikander Ali at Ex.

26. PW-13 Dr. Naseer Ahmed at Ex.

27. He produced provisional medical certificate of injured Shabir Ahmed at Ex.27/A and final medical certificate of injured Shabbir Ahmed at Ex.27/ B, provisional medical certificate of injured Muhammad Mithal at Ex.27/C and final medical certificate of injured Mithal at Ex.27/D, provisional medical certificate of injured Hussain Bux at Ex.27/E and final medical certificate of injured Hussain Bux at Ex.27/F, provisional medical certificate of injured Fida Hussain at Ex.27/G and final medical certificate of injured Fida Hussain at Ex.27/H, provisional medical certificate of injured Mushtaque at Ex.27/I and final medical certificate of injured Mushtaque at Ex.27/J PW-14 Dr. Bachal at Ex.28. He produced provisional medical certificate of injured Muhammad Hussain at Ex.28/ A and final medical certificate of injured Muhammad Hussain at Ex.28/B, provisional medical certificate of injured Fazal Hussain at Ex.28/B and final medical certificate of injured Fazal Hussain at Ex.28/C; Thereafter, side was closed by prosecution through statement.

7. The statements of accused person(s) were recorded under section 342, Cr.P.C. respectively, wherein they professed their innocence and claimed to have been involved falsely. However, none of the accused persons came forward to examine himself on Oath or to lead evidence in his defence, as provided under section 340(2), Cr.P.C.

8. Learned counsel, has argued that the prosecution brought no independent witnesses to prove the charge and credibility of witnesses was not above board; there has been patent improvement as no allegation of instigation was there in FIR but introduced at trial stage to rope appellant Muhammad Morio @ Morial; 20 persons were claimed as accused in FIR which were reduced to 15 during trial; even alleged place of incident was not established beyond doubt as no blood stained earth was recovered from alleged place of incident; 161 Cr.P.C. statements were recorded with delay of seven (7) days which creates doubt about presence of witnesses; recovery, if any, is joint one; no roznamcha entries were produced to establish recovery; no FIR of theft was lodged yet conviction under section 380, P.P.C. was awarded illegally by trial court; no time of incident is mentioned; there has been conflict between ocular and medical evidences. Having pleaded so, he insisted that case of prosecution is full of doubts hence not capable to hold conviction. Learned counsel has relied upon 2011 PCr.LJ 113, 2011 PCr.LJ 363, 2009 PCr.LJ 506, 2010 SCMR 385, 2012 MLD 365, 2010 PCr.LJ 211, 2011 YLR 11, 2013 YLR 2383, 2009 PCr.LJ 857, 2010 YLR 2335, 2010 MLD 1612, 2014 YLR 1283, 2011 YLR 195, 2010 SCMR 407, 2008 YLR 2894, 2009 SCMR 985, 1998 SCMR 25, 1998 SCMR 279, 2008 PCr.LJ 869 and 2009 PCr.LJ 43.

9. Conversely, learned counsel for complainant and APG while refuting the contentions raised by rival side, argued that judgment of the learned trial court is well reasoned; there has been pleaded nothing on record to substantiate false involvement of the appellants/convicts in the instant case. Learned counsel for complainant has relied upon 2014 PCr.LJ 571, 2011 SCMR 492, 1994 SCMR 1, 1991 SCMR 1268 and 1970 SCMR 734.

10. I have carefully gone through the entire evidence and considered the submissions made at the bar as well case laws.

11. In the instant case the prosecution has lodged the FIR against number of the accused persons and it was claimed that all accused persons were having 'common object', therefore, it is proper and necessary to first determine whether in the circumstances of this case the prosecution has been able to prove the ingredients of section 149, P.P.C, and its application to the facts of the case. The section 149 is an exception to the general principle of Criminal Administration of Justice which insists that no one shall be penalized for the act of others. Through this exceptional provision, each member of an unlawful assembly can well be penalized for the act of other member of that assembly but this can legally sustain only if it is established that each member knew and sharing one and same object i.e 'common object', therefore, it is never safe to pass conviction without first determining that each member knew the object of unlawful assembly. Reference can be made to the case of 'Muhammad Altaf v. State' (2002 SCMR 189), wherein it was held:-

9. In the light of the arguments addressed and in view of the factual aspect of the case it is proper and necessary to first determine whether in the circumstances of this case the prosecution has been able to prove the ingredients of section 149, P.P.C., and its application to the facts of the case. As this section stands, its ingredients have to be established by the prosecution. The liability of each accused involved in a case can only be fixed if the common object of the assembly is first ascertained. (Underlining is supplied for emphasis)

12. Accordingly, I propose to address this issue first. For which section 149, P.P.C., being material, is reproduced hereunder:- Section

149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of the object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The above provision makes it clear that this shall come into play only where: i) offence is committed in prosecution of common object; ii) each member knows to be likely to be committed in prosecution of object; Thus, what is of much importance is 'acting in prosecution of common object' or 'knowing what likely to be committed in prosecution of object'. In either case what matters is the ultimate object for which five or more than five persons formed an unlawful assembly and proceeded ahead in prosecution thereof knowing consequence of their act of forming such unlawful assembly. Significant to add here that the prosecution would not only be required to establish forming of an unlawful assembly but it shall also be duty bound to establish that each member acted in prosecution of common object or each member acted knowing ultimate object, thereof. Reference can be drawn from the case of, referred supra (2002 SCMR 189); wherein it was held that: "knew' Word 'knew' occurring in the second part of the section requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations. Needless to append here that once it is established that each member acted in prosecution of common object or was knowing the ultimate object then it becomes immaterial whether each member played a role or not. At this juncture, It would be conducive to refer the operative part(s) of the judgment of Supreme Court of India in the case of 'Remachandran v. State of Kerala' (2012 SCMR 1156) wherein it was held:

14. However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object.

15. The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by section

141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons which were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly.

16. In K.M. Ravi and others vs. State of Karnataka. (2009) 16 SCC 337, this Court observed that mere presence or association with other members alone does not per se be sufficient to hold every one of them criminally liable for the offences committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act. (Underlining is supplied for emphasis)

13. The above discussion has made me of the clear view that before invoking the penal consequences of exceptional provision of section 149, P.P.C., the court would be legally required to consider the circumstances judiciously to see whether each member of unlawful assembly acted in prosecution of common object or each member knew the ultimate object thereof yet continued to be a member thereof. Besides one can either share and join 'an object' at any time of prosecution and similarly, one can part from it even during prosecution, therefore, such question always requires to be taken seriously by the Court. Any question, involving sharing intention or object, would require to be considered keeping in view back-ground (motive), manner of formation of assembly and its prosecution by the members.

13. Thus, let's examine the case as such. Before examining, it would be pertinent to mention that even the learned trial court not found the section 149, P.P.C. applicable for all accused persons as all convicts were not awarded same conviction(s) which, itself, is sufficient to show that learned trial court not came to such conclusion, though this issue was never addressed or determined by trial court. It is a matter of record that all prosecution witnesses categorically stuck during trial that 'appellant Morio, on approach, without any hesitation, agreed to give faisla for alleged theft' and prosecution witnesses never claimed any exchange of hot words nor it is anywhere alleged by the prosecution that the witnesses heard any conspiracy but it was alleged that number of persons, including the convicts, came out of house of Morio and made an assault. In absence of any plausible reason or motive it does not appear to be believable that more than 20 persons, including the convicts, would form an unlawful assembly with the only object to commit murder. Therefore, it would not be within Safe Criminal Administration of Justice to hold every accused jointly liable rather it would be safe to hold every accused for the act committed by him during the attack particularly, when allegation of causing hurt(s) was confined to 5/6 persons (members) of such allegedly formed unlawful assembly of about 20 persons. In the case of 'Muhammad Altaf v. State' (supra), the honourable Supreme Court while considering the motive held that : "In this back ground it is not just and proper to hold that to avenge a trivial and insignificant incident over pigeon, the grand-father, their son and their grandson would form an unlawful assembly with the only object to commit murder. Therefore, in these circumstances section 149, P.P.C. cannot be made applicable and so every accused would be liable to punishment for the act committed by him during the attack."

14. At this juncture, it would be material to see what prosecution witnesses speak about overt act of accused persons, including appellants? Here it is material to point out that witnesses of ocular accounts were examined twice i.e before arrest of absconding accused/appellant Kabeer and then after arrest thereof.

15. Before discussing evidence of witnesses of ocular account, who are also injured, it would be relevant to mention that mere injuries on person of a witness would not stamp it to be a witness of truth because injuries, at the most, could establish presence and not words of such persons, as held in case of 'Amin Ali v. State (2011 SCMR 323):- "

12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the person of P.Ws would not stamp them truthful witnesses. It has been held in the case of Said Ahmed v. Zammured Hussain 1981 SCMR 795 as under:- "It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself would not show that they had, in view of the afore-noted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-witnesses mentioned in the FIR namely Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eye-witnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused." In the case of Mehmood Hayat v. State 1996 SCMR 1411 at page 1417, it has been observed as under:- "

10. There is no cavil with the prosecution laid down in the case of Zaab Din and another v. The State (PLD 1986 Peshawar 188) that merely because the P.Ws had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their testimony.". In another case, reported as 2007 SCMR 670, it was held that: "Injuries on a prosecution witness are only indicative of his presence at the spot but are not affirmative proof of his credibility and truth."

16. Keeping in view above touchstone, I proceed to examine the evidence(s) and material shows that prosecution did not come forward with a specific allegation of 'instigation' against appellant Morial nor it was so in the FIR. This shall stand further clear from reproduction of operative part of first examination-in-chief and second examination-in-chief by putting both in comparative position. Complainant Umaid Ali ..We called Morio Khaskheli and we asked him to give our theft articles or faisla. He admitted the guilt and asked that he is ready to give faisla. Thereafter, at the distance of about 1-1/2 acres from the otaq of Morio Khaskheli we remained. At about 04.00 p.m we found 14/16 persons came running towards us from their houses. Out of them we recognized accused Morio, Ameen, Inayatullah, Azizullah, Rehmatullah and Parvez duly armed with hatchets and remaining with lathis. On their arrival accused Morio instigated others not to spare us. We were empty handed meanwhile accused Inayatullah caused hatchet injury to my brother Nabi Bux, accused Rehmatullah and Azizullah also caused hatchet blows to Nabi Bux. The accused also caused hatchet and lathi blows to me, as well as above named witnesses. We raised cries, which attracted 16/17 persons coming from the houses of accused, who rescued us. "I alongwith same persons tracked the foot prints which led us to the otaq of Morio Khaskheli. It was about 3-30 p.m. We made call to Morio Khaskheli at his house. He came there and we disclosed to him that theft was committed and foot prints of the thieves had led us to his otaq, therefore, the theft articles be returned by him. He admitted his guilt and asked us to remain there and he will return the theft articles. At about 4-00 p.m, 14 or 15 persons came running towards us from the house of Morio Khaskheli, at that time we were sitting in a hut situated at the distance of about 01-1/2 (acre) from the otaq of Morio 'Khaskheli. We all were empty handed. Accused Morio Khaskheli instigated the remaining accused not to spare us. Meanwhile, accused Inayatullah caused hatchet blows to my brother Nabi Bux, accused Rehmatullah and Azizullah also caused him hatchet blows. The persons alongwith Inayatullah caused injuries to Muhammad Hassan, Mithal, Shabbir Hussain, Hussain Bux, Fazal Hussain, Mushtaque Hussain, Fida Hussain and Nabi Bux. We raised cries and accused also caused me lathi blows. Meanwhile 16/17 other persons also came from the house of Morio Khaskheli and stopped the persons, who were causing injuries to us." PW Muhammad Hassan He asked us that he is ready to face the situation and asked us to wait for, hence we remained at the hut of Mithal Gudaro. While we were available there, 15/16 persons assaulted upon us duly armed with hatchets and lathis. Out of them, we identified accused Inayatullah, Ameen, Morio, Rehmatullah and Azizullah. On arrival, accused Rehmatullah caused hatchet blows to me. Accused Inayatullah Bux and thereafter, remaining accused also caused him injuries. We raised cries and about 15/16 persons came from the house of Morio and took away those accused who assaulted upon us' "...Thereafter, we tracked the foot prints of thieves, which led us to the house of Morio Khaskheli. We called Morio Khaskheli and asked him that theft from the otaq of complainant was committed and the foot prints had led us to his house, therefore, he should return the stolen property. He admitted his guilt and asked to sit there, as such, we went to the hut situated at the distance of about 01-1/2 (acres) from his house. Meanwhile accused Morio along with 14/15 persons came out from his house and asked remaining persons not to spare us. Meanwhile, accused Inayatullah caused hatchet blows to Nabi Bux, accused Rehmatullah caused hatchet injury to me on my head, as such, I went unconscious' PW Mithal Gudaro He admitted his guilt that such articles were stolen by them and ready to return the same. We sat in the lands, situated at the distance of about 1-1/2 acres, where a hut was constructed. After about 01 hour accused Morio, Azizullah, Rehmatullah, Muhammad Ameen and some unidentified persons arrived there duly armed with hatchets. All of those accused mentioned above were having armed with hatchets. On their arrival, accused Morio instigated the others not to spare us. Meantime, accused Inayatullah caused hatchet injuries to Nabi Bux. Accused Azizullah caused hatchet injuries to Shabir. Accused Ameen caused hatchet injuries to Hussain Bux. Unidentified persons caused injuries danda blows to me, Fida Hussain, Fazal Hussain and Mushtaque. Umed Ali raised cries and some persons from the side of accused party came there and took away the accused with them.' He was not examined subsequently after framing of fresh charge. PW Hussain Bux 'We called the accused Morio and he told us that we will give faisla and we sat in the lands situated at the distance of about 1-1/2 acre from his house. It was about 4.00 p.m, accused Azizullah, Inayatullah, Rehmatullah, Muhammad Ameen, Morio and unidentified persons assaulted upon us. All of nominated accused were armed with hatchets. Meanwhile accused Ameen caused hatchet blow to Nabi Bux. Accused Azizullah and Rehmatullah caused me hatchet injuries. Accused Rehmatullah and Morio caused injuries to Shabir. On sustaining injuries, I lost my senses.' "...we all tracked the foot prints of accused, which led us to the house of accused Morio. We called Morio, he admitted his guilt and prepared to return the stolen articles. Thereafter, we went to the lands of Mitho Gudaro situated at the distance of about 01-1/2 (acre) from the house of Morio Khaskheli. Meanwhile, accused Amin, Inayatullah Kabeer, Rehmatullah, Morio and 10/11 other persons came there. Accused Morio instigated other accused not to spare us and accused Inayatullah caused hatchet injuries to Nabi Bux, he raising cries fell down on the ground. Accused Rehmatullah and Azizullah caused me lathi blows, as such my right arm broke. They also caused me injuries on my head. I went unconscious' He was not examined. PW FAZAL HUSSAIN GUDARO (Ex.17) ...Thereafter, we tracked the foot prints of the accused, which led us to the house of accused Morio Khaskheli. At about 3-00 or 3-30 p.m we met with accused Morio Khaskheli, we asked him that theft was committed from the otaq of complainant and foot prints led us to his house, he admitted his guilt and ready to resolve the matter. Thereafter, we sit in the otak of Mitho Gudaro. It was about 4.00 p.m accused Morio, Inayatullah, Azizullah, Rehmatullah, Ameen, Parvez, Kabeer and 8/10 others came there. At the instigation of accused Morio, accused Inayatullah caused hatchet blows to my uncle Nabi Bux, accused Azizullah and Rehmatullah also caused him hatchet injuries. Accused Morio and Parvez caused hatchet blows to me. On sustaining injuries, I went unconscious.

17. These are the witnesses, which the prosecution examined, to prove ocular account. These witnesses do not support the allegation of 'instigation' against the appellant Morial. The complainant, though stuck with such allegation in both examinations, but he has not stated so in his FIR. This allegation appears to be an exaggeration to widen the net. The witness, making improvements in his examination, loses his credibility particularly to such an extent.

18. Further, it does not appear to be reasonable that when admittedly accused Morial showed no resistance to alleged demand of return of theft articles nor per PW Muhammad Hassan (Ex.6) it came to surface that: 'it is correct that no other community people near place of incident, where we sustained injuries, except house of accused Morio and Gudaro community peoples; 'We had not seen any person going towards the house of accused Morio, during the time when we sat on the place, where sustained injuries' If so, then how two set of more 15 persons came from side of house of accused Morial at two different times with two entirely different attitude and behaviour, therefore, allegation of 'abatment' or 'instigation' does not appear to have been proved beyond all reasonable doubts.

19. Let's see what these witnesses say about act of causing injuries by accused persons, including appellants. COMPLAINANT UMED ALI "Accused Morio Khaskheli instigated the remaining accused not to spare us. Meanwhile, accused Inayatullah caused hatchet blows to my brother Nabi Bux, accused Rehmatullah and Azizullah also caused him hatchet blows. The persons alongwith Inayatullah caused injuries to Muhammad Hassan, Mithal, Shabbir Hussain, Hussain Bux, Fazal Hussain, Mushtaque Hussain, Fida Hussain and Nabi Bux". PW MUHAMMAD HUSSAIN "Meanwhile, accused Inayatullah caused hatchet blows to Nabi Bux, accused Rehmatullah caused hatchet injury to me on my head, as such, I went unconscious" PW HUSSAIN BUX "Accused Morio instigated other accused not to spare us and accused Inayatullah caused hatchet injuries to Nabi Bux, he raising cries fell down on the ground. Accused Rehmatullah and Azizullah caused me lathi blows, as such my right arm broke. They also caused me injuries on my head. I went unconscious" PW FAZAL HUSSAIN "At the instigation of accused Moro, accused Inayatullah caused hatchet blows to my uncle Nabi Bux, accused Azizullah and Rehmatullah also caused him hatchet injuries. Accused Morio and Parvaiz caused hatchet blows to me. On sustaining injuries, I went unconscious"

20. The perusal of the above operative part of the examination-in‑chief of witnesses of ocular account would show that they three of them, i.e. complainant Umed Ali, PW Muhammad Hussain and PW Hussain Bux only name Inayatullah, Rehmatullah and Azizullah to have caused injuries while Fazal Hussain claimed to have received injuries at hands of Morio and Parwaiz. These witnesses, no where, claimed any injury by appellant Ameen hence conviction to appellant Ameen was, at all times, not sustainable regarding sections of injuries.

21. Since, it already stood held that it was not a case where exceptional provision of section 149, P.P.C. could come into play. Therefore, the learned trial court was not legally justified in awarding conviction(s) to a bunch of accused/appellant i.e Inayatullah, Azizulah, Rehmatullah, Morio and Ameen but each should have been given due of what they did.

22. Earlier the case was lodged as one of attempt to Qatl-i-Amd but later it stood converted into one of section 302, P.P.C. as injured Nabi Bux succumbed to injuries. All witnesses of ocular account failed in sticking with each other regarding other allegations except the allegation against appellant Inayatullah that injuries to deceased were caused by appellant Inayatullah. In these witnesses one is complainant who is real brother of the deceased Nabi Bux. The unfortunate tendency of widening the net does exist in our society but it is against the human behaviour that such tendency could result in compelling blood-relation or even relative to let the real culprit escape. As per medical evidence the deceased Nabi Bux, at time of his examination, was having: 'lacerated wound 3 c.m x 1/2 c.m into skin deep with bone visible with defused swelling on right parietal region' Patently this was the injury which resulted in cause of death of injured Nabi Bux. Since ocular account against appellant is direct, natural and confidence inspiring as presence of these witnesses stood stamped because of injuries. Further, the manner of their sticking with specific claim against appellant is worth believing particularly in absence of any motive of such a nature to place appellant Inayatullah in place of real culprit. Needless, to mention here that interested witness, now, stood defined as "one who is established to have such a motive on account of enmity or any other consideration which could convince him to place his finger on an innocent at cost of real murderer". Reference, if any, can well be made to the case of Khizar Hayat v. State reported as 2011 SCMR

429. Therefore, I am of the considered view that injury attributed to appellant Inayatullah on head of deceased Nabi Bux is prima facie worth believing as having come through direct evidence.

23. Noteworthy to add here that witnesses during incident may commit mistake in identifying accused causing injuries to others but the one, receiving injury on his own person from front side, would be in a better position to identify the person causing such injuries on his person.

24. Injured PW Muhammad Hassan has claimed to have received injuries at the hands of Rehmatullah on head which was declared as Shajjah‑i-munaqillah so does the witness (injured) Hussain Bux claimed to have received injuries at hands of appellant Rehmatullah and Azizullah which were never specified therefore, conviction against appellant Rehmatullah could sustain to extent of Shajjah-i-munaqillah only while a general and vague allegation of causing injuries by appellant Azizullah is not sufficient to hold him guilty for undefined/unexplained act.

25. The injured witness Fazal Hussain claimed to have received injuries at hands of Morio and Parwaiz but since it stood established that appellant Morio was not armed with any weapon (lathi or hatchet) hence this claim against the appellant Morio cannot sustain legally.

26. Here it is important to include here that there had been recoveries from the appellants but the recovery is not a sole issue to determine the guilt but it is the direct evidence which matter(s). In matter of hurt(s) or Qatl if the direct evidence finds support from medical evidence and qualifies the test of such evidence being natural, direct and confidence inspiring then recovery or non-recovery of crime weapon is not of much importance as status of such piece of evidence is always corroborative in nature. Reference, if any, can well be made to the case reported as 2009 SCMR 436 and 2011 SCMR 872.

27. As regard the conviction under section 380, P.P.C., it would suffice to say that such incident was undisputedly an unseen one and except alleged production of stolen articles at pointation of appellants Ameen and Inayatullah there is no other evidence. Such place of production is not a place, absolutely within their command and control and even otherwise it is not believable that they accused would bury even eating articles beneath the earth. In absence of any other evidence mere recovery of stolen articles at pointation of accused from an open place is not sufficient to hold conviction.

28. Further, the trial court has also awarded conviction to appellant Kabeer for offence under section 148, P.P.C. which does not appear to be logical because the issue of rioting, being armed with deadly weapon, was never established by prosecution nor it was discussed by the trial court, therefore, conviction for such offence cannot be allowed to continue holding field.

29. In view of above discussion, I am of the considered view that prosecution failed to establish the charge against the appellants namely Morial @ Morio, Azizullah, Ameen and Kabeer, however, prosecution established the charged against appellant Inayatullah and Rehmatullah only which too for their independent act and consequence(s) thereof.

30. Accordingly, the impugned judgment is hereby set aside and appellants Morial @ Morio, Azizullah, Ameen and Kabeer are hereby acquitted from all charges by giving them benefit of doubt. Consequently Ameen and Kabeer present on bail, their bail bonds are discharged, surety papers shall be returned in accordance with law. Since the case against appellant Inayatullah stood established to extent of fatal injury on person of deceased which resulted into his death, therefore, I maintain the conviction awarded to appellant Inayatullah for offence under section 302(b), P.P.C. whereby he was sentenced to suffer life imprisonment and payment of compensation of Rs.100,000/- to legal heirs of deceased Nabi Bux, which be treated to have been under section 544, Cr.P.C. The appellant Rehmatullah is acquitted from all other charges, however, I maintain the conviction, awarded to him for offence under section 337-A(iv), P.P.C. and sentence thereof i.e five years R.I but he is also liable to pay Daman which on recovery be paid to the injured Muhammad Hassan. HBT/M-178/Sindh Order accordingly.