1984 P Cr (PLP)

Appellants abovenamed being aggrieved by judgment dated 12-10-1982 of the learned Sessions Judge, Thatta, in Sessions case No.49/80, by which appellants have been convicted under section 302/34, P.P.C. and sentenced to suffer imprisonment for life and to pay of Rs.3,000 each or in default to suffer further R.I. for' 6 months under section 302/34, P.P.C. and sentenced to suffer R.I. for 6 months each under section 323/34, P.P.C. and in addition to this the appellants have been directed to pay compensation of Rs.2 000 under section 544-A Cr.P.C. to the heirs of deceased Feroze and Rs.1,000 each to injured P.W. Hassan or in default of payment of compensations to suffer furtfyer R.I. for 6 months each, have preferred the above appeal, on the following facts and grounds:

2. The brief facts of the prosecution case are that on 11-7-1980 complainant Naseebo lodged his initial report at P.P. Jungshahi, which was subsequently brought on 154, Cr.P.C. book at P.S. Thatta, that he owns about 15 Acres land in deh Kohistan 7/4 in which same was sown. On 11-7-1980, in the morning about 20-25 heads of cattle of Adloo Siddik, Jumo and Rano came in his cultivation. He asked his brother Feroz and Hassan his sister's son to take that cattle to cattle pound. Both took the cattle for cattle pound. When they passed in front of their house, the abovementioned appellant viz. Adloo armed with hatchet, Siddik also with a hatchet Jumo with Lathi and Rano also with Lathi came running there. They asked Feroz and Hassan to release the cattle. His brother refused. On the commotion Wasial. Fazil and his son Allah Rakhio also came running there. On the investigation of Rano, Siddik gave sharp side hatchet blow to Feroz behind his head who fell down. Adloo gave back side hatchet blow with blunt side to Hassan. Jumo gave Lathi blow to Feroz. They intervened and rescued them. Appellants then left for their house. They saw Feroz lying injured and unconscious. Then complainant went to P. P. Jungshahi and lodged his report.

3. Abdul Rahman was A.S.I. Incharge at P.P. Jungshahi on 11-7-1980 who recorded the report of complainant in Roznamcha. He sent the Roznamcha to Police Station, Thatta for incorporating the same in 154 Cr.P.C., book. Thereafter he prepared the Mashirnama of injuries of injured Feroz and Hassan in presence of Mashirs Sher Muhammad and Karim. He recorded 161, Cr.P.C., statement of injured Hassan and then he referred both the injured to Civil Hospital, Thatta. Thereafter he visited the Vardat and secured blood-stained earth from the Vardat and sealed the same in one in presence of Mashirs Yousuf and Saifal under the Mashirnama. He also prepared Mashirnama of the land of Sersame crop in presence of same Mashirs. On 12-7-1980 he was informed that injured Feroz expired in the hospital as such he came there. He prepared the inquest report as well as Mashirnama of dead body in presence of Mashirs Moula Bux and Mozan. Thereafter he recorded 161, Cr.P.C. statements of P.Ws. namely Wasial, Fazal, Allah Rakhio and Hassan. He received the clothes of the deceased from Medical Officer, which he secured under Mashirnama in presence of Mashirs Moula Bux and Mozan. On 14-7-1980 he arrested appellants Siddik, Adloo, Rano and Jumo in presence of Mashirs Qasim and Ishaque. Appellant Siddik was interrogated and he voluntarily led him and Mashirs Qasim and Ishaque to his house and from his house he picked up the blood-stained hatchet and produced the same before them which A.S.I. secured and sealed in presence of Mashirs. Then appellant Adloo also voluntarily led him and the same Mashirs to his house and from his house he produced one non-blood-stained hatchet, which he secured in presence of same Mashirs, under the Mashirnama. Likewise Rano appellant also voluntarily led him and Mashirs to his house and from his house he produced one Lathi which A.S.1. secured in presence of above Mashirs under the Mashirnama. Lastly appellant Jumo also produced Lathi by leading them to his house, which A.S.I. secured in presence of Mashirs under the Mashirnama. On 16-7-1980 he got recorded 164, Cr.P.C. statements of Wasial, Fazal, Allah Rakhio and Hassan before Honorary Magistrate, Thatta. Then he handed over the case papers to S.H.0. who challaned the appellants on 26-7-1980 in the Court of Civil Judge and F.C.M., Thatta, who sent the case to trial Court for trial.

4. During the trial the learned trial Court examined the following witnesses:- "Complainant Naseebo Exh. 10 P.W., Hassan Exh. 12 P.W. Wasial Exh. 13, P.W. Fazal Exh. 14, P.W. Saifal Exh. 15 P.W. Moula Bux Exh. 16, P.W. Qasim Exh.

17. P.W. Mir Khan Exh. 18, P.W. Abdul Rehman Exh. 20 and P.W. Dr.Ghulam Murtaza Exh. 21.

5. The appellants were examined under section 323, Cr.P.C. wherein they have denied the allegations levelled against them. The appellants did not examine any witness in their defence.

6. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellants hereinbefore mentioned and consequently the appellants have filed the above appeal on the grounds mentioned in the memo of above appeal. The learned Advocate for the appellants in support of the above appeal submitted as under:- (a) That this was an unwitnessed crime and all the P.Ws are closely related and as such no reliance can be placed on their Statement without independent corroboration, which in his opinion was not at all available in the present case. (b) That the prosecution has failed to establish the alleged motive and consequently the conviction of the appellants is not at all justified. (c) That the recovery made from some of appellants are doubtful and have not been proved beyond reasonable doubt and as such ought to have been ignored. (d) That the prosecution has failed to prove common intention and/or common object between the appellants in respect of the alleged incident as such appellant Siddik who is alleged to have given fatal blow could only be held responsible, even if the prosecution story is believed, as admittedly the incident took place in a sudden quarrel and as such each appellant would be responsible for his own overt act. (e) That the medical evidence belies the time of the incident. (f) That the Mashir was not independent Mashir and as such no reliance can be placed on his statement as far as recoveries are concerned.

7. In support of the above contentions the learned Advocate for the appellants relied upon cases reported in P L D 1971 Pesh. 41 and 1980 S C 1A R 889 and further submitted that the statement of P.W. 2 Hassan P.W. 3 Wasial and P.W. 4 Fazal cannot be relied upon as their statements under section 161, Cr.P.C. were not recorded immediately but after the lapse of few days.

8. The learned Advocate appearing for the State at the outset submitted that in view of the admitted position, that there was a sudden quarrel and consequently each appellant will be responsible for his own overt act. In his opinion, the prosecution has failed to establish its case against the appellant Adloo, Jumo and Rano as here is nothing on record to prove common intention and common object between the appellants for committing murder of the deceased. In view of this he submitted that the of'f'ence under section 302 from the evidence on record stands proved against the appellant Siddiq only and under section 323, P.P.C. against the appellant Adloo. In support of the above contentions, the learned Advocate for the State relied upon cases reported in P L D 1969 S C 127 and P L D 1981 S C 54.

9. I have carefully considered the above submissions made by the learned Advocate before me and have gone through the record and proceed ings of the learned trial Court as well as impugned judgment and cases cited by the learned Advocates before me.

10. According to prosecution case, the incident took place on account of cattle trespass all of a sudden, without premeditation and as such appellant will be responsible for his own overt act. Keeping this legal aspect in view. I have carefully gone through the statements of P.Ws. Naseebo, Hassan and Wasial and Fazal, whose statements are straight forward. According to these P.Ws. appellant Siddik alone inflicted one sharp-sided hatchet blow to the deceased at the back side of his head. According to P.W.10 Dr. Ghulam Murtaza, said injury was cause of death of the deceased Feroz. Neither P.W.10 nor post-mortem report Exh. 21-B shows, that the said injury was sufficient in ordinary course of nature to cause death. In view of this, I agree with the contentions of the learned Advocate for State that appellant Siddik alone will be for the death of deceased Feroz. However keeping in view these facts on record, the offence committed by appellant Siddik would fall under section 304 (1), P.P.C. and not under section 302, P.P.C. in my opinion as appellant Siddik is alleged to have given only one blow, although deceased was unarmed, in a sudden quarrel over cattle tresspass dispute, I find no force in the contention of learned Advocate for appellants that as these P.Ws. are inter-related their statements should be discarded, as there is no independent corroboration available on record. It may be noted F.I.R. was promptly lodged and names of appellants and P.Ws. are mentioned therein. In addition to this blood-stained hatchet was recovered from the possession of appellant Siddik, which fact has been duly proved by statement of P.W. 7 Qassim, against whom no enmity is alleged. Nol doubt there are certain discrepancies in statement of this P.W. about actual date of the arrest of appellants, but he is illiterate and his statement was recorded after lapse of 11 years.

11. In view of my above conclusion, conviction of other appellants for death of deceased Feroz cannot be sustained. However as far as simple injury on person of P.W. Hassan is concerned all P.Ws have stated that the same was caused by appellant Adloo. Statement of these P.Ws. is fully corroborated by Statement of P.W. 10 Dr.Ghulam Murtaza and medical certificate Exh. 21-A. Since there was sudden quarrel without pre-mediation, appellant Adloo alone will be responsible for causing said injury to P.W. Hassan, in my opinion.

12. I find no force in the other contentions raised by learned Advocate for appellants i.e. prosecution has failed to establish motive and/or that medical evidence belies the time of incident etc.

13. In view of my above conclusions I find prosecution has failed to prove its case against appellants Adloo, Jumo and Rano for murder of deceased Feroz and against appellants Siddik, Jumo and Rano for simple injury received by P.W. Hassan.

14. Therefore I set aside conviction and sentences awarded to appellants Adloo, Jumo and Rano under section 302/34, P.P.C. In respect of murder of deceased Feroze and also set aside conviction of appellants Siddik, Jumo and Rano under section 323/34 in respect of simple injuries received by P.W. Hassan. However 1 after the conviction of appellant Siddiq from section 302, P.P.C. to one under section 304 (1), P.P.C. for causing death of deceased Feroz and alter sentence of life imprisonment awarded to him in respect thereof to 8 years' R.I. and maintain the fine of Rs.3,000 imposed on him by learned trial Court as well as payment of Rs.2,000 by way of compensation under section 544-A, Cr.P.C. to the legal heirs of deceased Feroz and in default of payment of fine and compensation to suffer further R.I. for six month's. As far as appellant Adloo is concerned. A convict him under section 323, P.P.C. for having caused simple injury to P.W. Hassan and sentence him in this connection to a month's R.I. and to pay compensation of Rs.2,000 to P.W. Hassan under section 544-A, Cr.P.C. and in default of said payment to suffer further R.I. for six months.

15. I further direct that appellants Siddik and Adloo be given benefit of the provisions of S. 382-B, Cr. P.C. in respect of period of their detentions as undertrial prisoners towards their substantive sentences in addition to all other remissions to which they may be entitled in accordance with jail rules.

16. As a result of above judgment appellants Jumo and Rano are acquitted and consequently they may be released forthwith, if not required in any other case, as for as appellants Siddiq and Adloo are concerned they are to be dealt with in accordance with this judgment. M.Y.H Appeal partly allowed