P L D 1962 (W (PLP)

H. T. RAYMOND, J.‑The eight appellants in this case along with co‑accused Lal Khan all Joyos by caste and residents of village Luhri, Taluka Kakar, District Dadu, were tried by the Additional Sessions Judge, Dadu (Mr. Muhammad Yusuf C. Khawaja) for offences under sections 148, 452 and 366, P. P. C. and sections 302, 307, 326, 325, 324 and 323 read with section 149 or in the alternative with section 34, P. P. C. Co‑accused Lal Khan was acquitted and the eight appellants convicted and sentenced as under :‑ Appellants Ahmed and Haji Hashim were convicted under section 302/149, P. P. C., and were sentenced to transportation for life. All the eight appellants were convicted under section 452, P. P. C., and sentenced to undergo rigorous impri sonment for three years: under section 148, P. P. C., and sentenced to undergo rigorous imprisonment for two years: and under section 326/149, P. P. C., and sentenced to undergo rigorous imprisonment for ten years with the exception of appellant Muhammad who was given five years' rigorous imprisonment instead of ten years. This present appeal bas teen filed on behalf of all the eight appellants convicted in this case.

2. It is of interest to note that these eight appellants not only belong to the same caste but are also closely inter‑related. The complainant party also belong to the same caste and reside in the same village at a distance of two or three furlongs away from the houses of these appellants. The complainant and his witnesses in this case are also very closely inter‑related. It is unnecessary to set out here this relationship in detail. It will suffice to say that the complainant Dhani Bakhsh P. W. 7, and the prosecution eye‑witnesses all reside close together in separate houses but within the same thorne enclosure. For the past five years there bas been ill feeling and unpleasantness between the complainant and the accused parties consequent upon Mst. Nasiba P. W. 12, daughter of the appellant No. 1, Ahmed, being enticed away by Hidayatulla alias Hidu P. W. 15, the son of the complainant, Dhani Bakhsh P. W.

7. This Mst. Nasiba was married to appellant Muhammad and it was during the pendency of this marriage that Hidayatullah enticed her away and took her to live with him in the District of Nawabshah on the other side of the river. Mst. Nasiba resided there with him either as his mistress or as his wife for a period of five years before the date of the incident in this case. Soon after the introduction of Martial Law in Pakistan in October 1958, and the general amnesty announced to all those who had abducted or kidnapped or enticed away women, Mst. Nasiba was restored to her parents. Her husband appellant Muhammad then divorced her and she was then married to appellant Ghulam Nabi alias Gullan. Complainant Dhani Bakhsh states that at the interven tion and upon the insistence of Wadero Imam Baksh he brought Mst. Nasiba from Nawabshah across the river to Dadu to the village of her people and restored her to her father Ahmed there. This was about a month before the incident in this case. According to Dbani Bakhsh Mst. Nasiba bad legally married his son Hidayatullah and he had requested Wadero Imam Bakhsh to bring about a compromise between the two parties so that Mst. Nasiba may continue to be the wife of Hidayatullah. As an inducement towards the acceptance of this compromise complainant Dhani Bakhsh had offered two women in marriage to the accused party plus a sum of Rs. 3,000 in cash, but nothing came of this suggested com promise.

3. On the day of the incident in this case, namely, 11th March 1961, at about noon time Hidayatullah came on horse back to Dadu from his place of residence in Nawabshah and rode towards the house of his father Dhani Bakhsh in village Luhri, District Dadu. The route taken by him lay past the houses of the appellants and it appears that Hidayatullah while coming along this route to his father's house was seen by Mst. Nasiba who was then residing in the house of her father, the appel lant No. 1, Ahmed. Soon after Mst. Nasiba came to the complainant's house saying that she had seen Hidayatullah go past her father's house and that she wanted to be with him. A little later, the eight appellants all armed with hatchets entered the house of Dhani Bakhsh, attacked Mst. Nasiba and the inmates of this house with the weapons in their bands and then made off taking Mst. Nasiba with them. In the course of this attack the appellants caused serious injuries to Hidayatullah, Punhoon, Kouro and Safar and they also injured Mst. Sahib Khatoon P. W. 10, Mst. Saran P. W. 8, Mst. Nasiba P. W. 12 and Haji Ghulam Rasool P. W. 9. of these Kouro and Punboon succumbed to their injuries on the spot and Safar expired that night in the hospital. Complainant Dhani Bakhsh went to their Nekmard Haji Abdur Rasool Khan P. W. 11, and informed him of the incident. He was advised to go and report the matter to the police and accordingly Dhani Baksh went to the Khairpur Nathan Shah Police Station at a distance of seven miles where his first information report was recorded by A. S. I. Fazal Haq P. W. 16 at 5‑20 p.m. that day.

4. After recording this first information report A. S. I. Fazal Haq proceeded to the vardat where he found the dead bodies of Punhoon and Kouro lying in pools of blood and P. Ws. 9 and 15, Haji Ghulam Rasool and Hidayatullah lying injured and unconscious. He observed that there were cut marks of hatchets on the door and the windows of the room and a pillow stained with blood lying on the bedding. A gun broken into two parts and an empty shell of cartridge were also found lying there. He prepared a mashirnama of this scene of offence as per Exh.

16. He also prepared mashirnamas of the injuries of Hidayatullah and Ghulam Rasool and sent them along with the two dead bodies to the hospital. Injured Safar had. already been removed to the hospital and a mashirnama of his injuries was also prepared but he died that same night. The A. S. I. then went after the appellants and secured them at a distance of six miles from their village. He recorded statements of various witnesses, sent the blood‑stained articles secured by him to the Chemical Examiner and then handed over the papers of investigation to the S. H. O. Gehi Mal P. W. 14, who challaned the accused in Court.

5. In their statements, the accused deny the allegations preferred against them. Appellant Ahmad had lodged his own first information report with A. S. I. Fazal Haq at Khairpur Nathan Shah Police Station at 5‑0 p.m. that same day some twenty minutes before the first information report in the present case was recorded. His case is that his daughter Mst. Nasiba whom he had married to appellant Muhammad was abducted by Hidayatullah but ultimately restored to him by Dhani Baksh when she was married again to Ahmed's nephew Ghulam Nabi alias Gullan. On the day of the incident Hidayatullah, Punhoon and Ghulam Rasool entered Ahmed's house and forcibly dragged his daughter Mst. Nasiba to their place. Ahmed and his com panions went to retrieve Mst. Nasiba and were attacked by the complainant and his party. The appellants deny that any blood stained clothes or weapons were secured from their possession. They say that they have falsely been implicated in this case as accused on account of enmity with the complainant party.

6. The evidence for the prosecution in this case consists of Dhani Baksh P. W. 7, Mst. Saran P. W. 8, the wife of Dhani Baksh's nephew deceased Punhoon : Mst. Sahib Khatoon P. W. 10, the wife of Dhani Baksh's brother deceased Kouro and the mother of deceased Punhoon : Haji Ghulam Rasool P. W. 9, the son of deceased Kouro and nephew of complainant Dhani Bakhsh: Hidayatullah P. W. 15, the son of complainant Dhani Baksh, and Mst. Nasiba P. W. 12, the wife of Hidayatullah P. W.

15. The evidence of these witnesses excluding Mst. Nasiba is that they were all seated at about noon time on the day of the incident together in the house of Dhani Baksh along with deceased Kouro brother of Dhani Baksh, deceased Punhoon son of deceased Kouro and deceased Safar nephew of complainant Dhani Baksh. Mst. Nasiba entered this house to meet Hidayat ullah and after a while the eight appellants armed with hatchets came in, attacked them all and ultimately carried off Mst. Nasiba. Deceased Punhoon picked up the licensed gun of his father deceased Kouro and fired a shot in the air in order to scare away, the appellants. With the barrel of his gun deceased Punhoon also caused injuries to appellant Gullan. The appel lants caused serious injuries to Kouro, Punhoon, Safar, all three deceased and also to Hidayatullah P. W.

15. The also injured Haji Ghulam Rasool and Mst. Sahib Khatoon, Mst. Saran and Mst. Nasiba. As mentioned above, these eye witnesses though injured themselves are all closely inter‑related and connected with the complainant Dhani Baksh and consequently we have felt in our minds a certain reluctance to accept and rely upon this oral evidence implicitly. It would, therefore, become necessary to look around for some corroborative evidence to support the evidence of these closely inter‑related and interested eye witnesses.

7. Such corroborative evidence is said to exist in the evidence of P. W. 11 Haji Abdur Rasool and the recoveries made from the appellants. Examining the statement of Abdur Rasool P. W. 11 who is the Nekmard of the complainant party and to whom complainant Dhani Baksh first went before going to the police station, we find that he is another close relation of the complainant in that his wife Mst. Bakhtawar is a sister of the complainant and deceased Kouro. Thus, this witness is not only a close relation of the complainant but also a caste fellow residing only about a mile away from the house of the complainant. In these circumstances, it appears to us that this witness is as closely connected with and related to the complainant as the above‑mentioned eye‑witnesses in this case.

8. Next, with regard to the recoveries made from the appellants we find that although the hatchets have been secured from the house of Hashim and the joint house of Gullan, Ahmed and Buxial and a hatchet and lathi from the joint house of Sultan and Allan yet, these weapons have been washed and although sent to the Chemical Examiner, the report states that the stains thereon are disintegrated so that their origin cannot be determined. In like manner, certain articles of clothing were recovered from appellants Gullan, Buxial, Sultan, Allan and Hashim which were also sent to the Chemical Examiner: but here again his report is that the stains are so disintegrated that their origin cannot be determined. Thus, there is no disinterested, reliable and corroborative evidence in this case to support the oral testimony of the five eye‑witnesses.

9. However, in the case of appellant Ahmed and appellant Gullan, there does exist on the record of this case further evidence which may be accepted as reliable corroborative evidence so far as these two appellants are concerned. With regard to appellant Ahmed this further piece of corroborative evidence con sists in his first information report recorded at Khairpur Nathan Shah Police Station by A. S. I. Fazal Haq at 5 p.m. that same evening. This document is Exh. 68 on the record of this case and it has duly been proved by the police witnesses. In this document appellant Ahmed admits his presence at the scene on the day and at the time of the attack and we, therefore, feel that we can safely rely upon this first information report in the counter case as an admission at least so far as its maker Ahmed is concerned. In this document Ahmed has also referred to some of his co‑accused in this case, but we cannot use this firs information report as against these co‑appellants of appellant Ahmed. With regard to the appellant Gullan alias Ghulam Nabi, the present husband of Mst. Nasiba, he was injured and on 14‑3‑1961, he was examined by Dr. Serajul Haq Exh. 81, the then Medical Officer, Khairpur Nathan Shah, who found two injuries on his person. It seems to us that these injuries constitute a piece of corroborative evidence so far as the case against appellant Gullan is concerned. But, with regard to the remaining appellants there is no other corroborative or disinterested evidence at all in support of the oral testimony of the five eye‑witnesses. In these circumstances, we do not consider it safe to uphold the convictions of these six appellants other than Ahmad and Gullan and, therefore, giving them the benefit of the doubt, we direct that they be acquitted and set at liberty if not wanted in any other case.

10. With regard to the two appellants Ahmed and Gullan, as there exists on the record of this case corroborative evidence against them, we must hold them guilty and, therefore, maintain their convictions. But, the question still remains as to the precise sections of law under which we maintain their convic tions. In this connection, we muss mention here that we cannot, understand how the learned trial Judge while convicting the appellants Ahmad and Haji Hashim under section 302/149, P. P. C. has yet convicted the remaining appellants not under, section 302/149 but only under section 326/149, P. P. C. Nor are we able to understand why the trial Judge has not convicted the appellants under section 366, P. P. C. for having forcibly abducted Mst. Nasiba. The learned trial Judge having reached the conclusion that the eight appellants had constituted themselves into an unlawful assembly, the common object of that unlawful assembly was clearly to get back Mst. Nasiba from the possession of the complainant party. It was In the Prosecution of this common object that tire eight appellants came armed with hatchets to the house of complainant Dhani Baksh. Again, it was in the prosecution of the common object of this assembly that the eight appellants caused injuries to the Inmates of the home of Dhani Baksh. The attack made by the appellants upon the complainant party was plainly a serious attack in the course of which three persons were killed and five were injured. The injuries sustained by these persons were caused not only in the prosecution of the common object of that assembly but also were such as the members of that assembly knew to be likely to be committed in the prosecution of that object. These injuries resulted in three persons being killed and five others being injured and, therefore, it seems to us that on the reasoning of the learned Additional Sessions Judge, he should consistently have held that not only Ahmad and Haji Hashim but also the remaining six appellants were cons tructively liable for the three murders and should, therefore, have convicted all the appellants under section 302/149, P. P. C. But, this is what the learned Judge has not done. He bas convicted only two of the appellants under section 302/149, P. P. C. and the remaining six under section 326/149, P. P. C. It is not intelligible to us how the learned trial Judge has made this distinction between the cases of appellants Ahmad and Haji Hashim and the cases of the remaining six appellants.

11. However, we have reached the conclusion that only the convictions of appellants Ahmed and Gullan must be upheld in this case. On the view taken by us both these appellants are constructively liable for murder: but in as much as the appellant Gullan has been convicted only under section 326/149, P. P. C. and there is before us no application or reference for enhance ment of his sentence, his conviction for constructive liability in respect of an offence under section 326, P. P. C. must be allowed to stand. However, as with the acquittal of the six co- appellants, section 149, P. P. C. can no longer be held to apply to the facts of this case, the convictions of these two appellants Ahmed and Gullan will have to be under sections 302 and 326, E P. P. C., respectively read with section 34, P. P. C. We experience no difficulty in substituting section 34, P. P. C. for section 149, P. P. C., because we are convinced that the common intention oil these two appellants was to forcibly abduct Mst. Nasiba and that the injuries caused by them were in furtherance of this common intention. With regard to appellant Ahmad, there is evidence to show that he had given hatchet blows to deceased Kouro which resulted in his death. We, therefore, uphold the convictions of appellants Ahmed and Gullan under sections and sentences under section 452, P. P. C. will also stand but their conviction under section 148, P. P. C. will be set aside. Their sentences will run concurrently. R. B. A./A. H. Appeal partly accepted.