2003 P Cr (PLP)

7. In support of the appeals, Mr. Sher Muhammad Shaikh, has firstly, submitted that there is discrepancy between the F.I.R. and the deposition of the eye‑witnesses. In this connection he referred firstly to the deposition of the complainant Rajah Ali, who has stated that accused Ali Hassan fired at Allahdad with a rifle who fell down then Pariah fired with his gun at Ali Sher who also fell down ‑and thereafter fired upon Allahwadayo, who fell down as did the complainant since the pellets had hit his left arm. The complainant has also deposed that Ghulam Nabi, Qurban and Mehnaz received fire‑arm injuries as well. Then the accused persons forcibly entered the house in order to abduct Mst. Shahul, who is stated to be the bone of contention between the parties, but when they were confronted with the Holy Qur'an they went away raising slogans. In cross‑examination, the complainant has admitted that the motive behind the crime in question was a matrimonial dispute between the parties and that all the accused belong to the same family and that the complainant parties as well as the accused party belong to the same village and all are Allani by caste. He has also admitted that although there were 12 houses in. the village but no one carne to the rescue of the complainant party and similarly none arrived from the adjoining village of Umer and Abdul Aleem Dahar. So also it has been admitted by the complainant that Mst. Shahul was not available at the scene of the crime but had gone to her uncle's village about 15 days prior to the incident. The witness also admitted that Mst. Shahul was residing with her family in the same compound where the complainant's house was located but none from her family are witnesses in this case although at the time of the incident the brothers and mother of Mst. Shahul were present in their house. It has also been admitted by the complainant that the father of Mat. Shahul had given her hand in marriage, to their Sardar Muhammad Muquim Khoso who lived in Balochistan. He also admits that he could not say as to who had caused injuries to his sister Mst. Mehnaz and Qurban.

8. Next learned counsel has submitted that according to the deposition of P.W. Allahdad appellant/accused Ali Hassan fired at him with a rifle; which hit him on the lobe of his ear and then Pariah fired at Allahwadayo, Ali Sher and complainant Rajah Ali. So also other accused fired with their weapons, which hit Qurban Ali and Mattar alias Ghulam Nabi and Mehnaz. Under cross‑examination the witness admits that he cannot hear or see properly for the past 8/10 years and further that Mst. Shahul's husband's name was not known to him nor his occupation or his village but only that he lived in Balochistan. The witness has voluntarily stated that Ali Hassan received injuries at the hands of the complainant party and also that on the night of the incident Mst. Shahul had gone with her brother to another village about 30 miles away.

9. Learned counsel has then referred to the deposition of P.W. Qurban Ali, who has repeated the contents of the F.I.R. in his examination‑in‑chief. Under cross‑examination the witness admits that the complainant party had also injured accused party and that Mst. Shahul was declared as Kari and sent to their Sardar.

10. Consequently, per the learned counsel whereas the F.I.R. records that Ali Hasan fired with a rifle at Allah Dad Bux and then Panah tired at Ali Sher with his gun and then indiscriminate firing was made by the accused party, as a result of which complainant Rajah Ali, P.Ws. Ghulam Nabi, Qurban and Mst. Mahnaz sustained gunshot injuries, in his deposition the complainant has given another version viz. that Panah also tired upon Allah Wadahyo as well as complainant, Qurbaa Ali, Mst. Mahnaz and Ghulam Nabi. Similarly P.W. Allahdad has also supported the version of the complainant Rajab Ali. Again per the learned counsel P.W. Qurban Ali has stated in his deposition that accused Panah had fired at Ali Sher as well as Allah Wadhayo. Consequently, per the learned counsel the deposition of these witnesses are contradictory and not worthy of reliance.

11. Secondly learned counsel has submitted that all the witnesses are relatives and hence their testimony is to be received with great caution unless it is corroborated by independent evidence. For this proposition reliance is made on Muhammad Muslim v. Mazhar Malik 1999 SCMR

103. Again per the learned counsel there is enmity between the parties as the bone of contention is the hand of Mst. Shahul who was admittedly the wife of accused Panah. In support of this contention he has relied upon Jaffar Shah v. Mian Yahya Shah 1999 SCMR 20 as well as Dur Muhammad v. The State 1996 PCr. LJ 435.

12. Next learned counsel has contended that there Were 12 houses in the village but it is quite strange as to why no one came to the rescue of the complainant party and so also no independent witness were produced by the prosecution which in the circumstances of the case casts a shadow of doubt on the prosecution version. Further per the learned counsel in the F.I.R. it is nowhere mentioned as to where was Mst. Shahul at the time of incident but it appears that she was present at the house of the complainant party. However, in cross‑examination the complainant has stated that on the night of the occurrence Mst. Shahul was not available in his house but had gone to the house of her uncle Fateh Muhammad in village Bozdar as her father had given her hand in marriage to their Sardar Muhammad Muqeem Khosoo who lived somewhere in Balochistan. This per the learned counsel against causes doubt in the prosecution version particularly as Rajah Ali and admitted in cross- examination that at the time of incident the mother and brothers of Mst. Shahul were available in the village and their house was in the same courtyard as that of his house.

13. Next learned counsel has referred to the testimony of Mohib Ali who is the Mashir of recovery and was declared hostile. Per learned counsel this witness has deposed that no empties or any other article were secured at the place of incident by the police in his presence. Under cross‑examination by the learned A.P.P. the witness has denied securing of empty shells/cartridges as well as live bullets etc. or that the police arrested the accused in his presence. However. He admitted under cross- examination to the learned counsel for the accused that the complainant Ali Sher and others are his relatives. Hence per learned counsel. The Mashirnama, which inter alia, records the recovery of 13 empties of gun, one empty of .303 rifle and six bullets of KK cannot be relied upon. Similarly per learned counsel the Mashirnama of injury only shows that Mst. Mahnaz was injured as per Exh.22/B.

14. Finally learned counsel submitted that the medico‑legal evidence on record does not corroborate the ocular version. In this regard he has referred to the testimony of Dr. Rahim Bux who was Medico‑legal Officer of Taluka Hospital, Qambar. He has opined that the complainant had received 5 injuries out of which injuries Nos.4 and 5 were caused by a hard and blunt substance whereas injuries Nos.1, 2 and 3 were caused by a tire‑arm on the left forearm and left wrist joint. Again the doctor has, opined that the injuries received by Mattar as well as Mahnaz and Allah Dad are simple injuries which were caused by a hard and blunt substance. As regards Qurban per the provisional certificate issued by him his injury appeared to have been caused by a fire‑arm, however, this was reserved for expert opinion. Finally as regards Ali Sher and Allah Wadhayo their injuries were attributed to a rifle and gun respectively. Under cross‑examination the Medico‑legal Officer bas admitted that when Ali Sher was brought before him, he had only suffered one injury caused by a fire‑arm on the left side of his chest and there was no exit wound of such injury.

15. The doctor has further submitted under cross‑examination that the injuries caused to Rajab Ali. Mattar and Mst. Mahnza could be self- inflicted because of their location. However, the injuries on the person of Allah Wadahyo and Qurban could not be self‑inflicted because of the same reason.

16. As opposed to the deposition of Dr. Rahim Bux, learned counsel has referred to the deposition of Dr. Sadruddin, Medical Officer, Civil Hospital, Khairpur, who has stated that on 17‑1‑1986 he had received Allah Wadahyo and Ali Shier in an injured condition. The latter had expired as soon as he reached Civil Hospital, Khairpur before any treatment could be given to him. Injured Ali Sher had expired on the same day at 10‑50 a.m. Thereafter, he had conducted post‑mortem examination of both the deceased the reports of which have been produced by him. According to these, as regards Allah Wadahyo, he had received one fire‑arm injury on the right side of the abdomen which is the wound of entry and 3 fire‑arm injuries also on the right side of the abdomen being wounds of exit. As regards the post‑mortem of deceased Ali Sher he had noted 3 fire-arm injuries; the first one on the upper right arm which is the wound of entry and the second one also on the upper right arm being the wound of exit the 3rd one was located on the right nipple which was wound of entry and exit. He has stated under cross‑examination that these injuries were caused by pellets and not a bullet.

17. On the basis of the foregoing medico‑legal evidence on the record learned counsel has submitted that there is contradiction between this and the ocular account since as far as the case of deceased Ali Sher is concerned Panah has been nominated as having shot Ali Sher with his gun in the F.I.R. which has been supported by all the P.Ws. as well as by Dr. Sadruddin who performed the post‑mortem and according to whom Ali Sher died of gunshot injuries. However, per Dr. Rahim Bakhsh these injuries were caused by a rifle. Consequently, per learned counsel though Panah could be held responsible for the death of Allah Wadahyo he could not be held responsible for the death of Ali Sher. Again as regards Allah Wadahyo, though, learned counsel has admitted that both the ocular version and medico‑legal evidence support each other yet no ballistic examination was carried out on the gun allegedly recovered from Pansh and he was acquitted in the section 13‑D case registered against him. Similarly as regards Mattar, Mst. Mahnaz and Allah Dad per ocular version they received tire‑arm injuries but according to medical evidence on record their injuries were caused by a hard and blunt substance such as a Lathi etc. and no one has been nominated in this regard and there was no recovery. However, although both these pieces of evidence are in accord in the case of Rajab Ali and Qurban no nomination has been made either in the F.I.R. or in the deposition of the witnesses as to who had given them these injuries.

18. In view of the foregoing, per learned counsel the ocular evidence is not to be relied upon since this is not in accord with the medical evidence. So also admittedly there was matrimonial dispute over Mst. Shahul and all the witnesses are from the same family, whereas the incident took place in a village containing at least 15 houses and no independent witness was examined. Similarly per the learned counsel although the brothers and mother of Mst. Shahul were present at the time of incident, they were also not examined. Therefore, a false motive has been set up by the prosecution viz. dispute over the hand of Mst. Shahul. For all the foregoing reasons learned counsel has prayed that these appeals be allowed and the appellants/accused be acquitted.

19. On the other hand Mr. Sher Muhammad Shar learned State Counsel has firstly submitted that as far as the case of Panah is concerned with regard to Allah Wadahyo all the P.Ws. support each other and the F.I.R. So also the medical evidence corroborates the ocular version since both doctors are of the opinion that the single wound received by the deceased Allah Wadahyo was from a gun. Similarly per the learned counsel with regard to Ali Sher all the witnesses support each other that Panah had shot him with a gun and so also both the doctors support each other that this was again a gun injury. Again with regard to Rajah Ali per learned counsel all the witnesses are consistent that Pariah had fired at him and the wound was caused by a gunshot which is also supported by the medical evidence. So also as far as the case of Siddiq with regard to Qurban is concerned the ocular account as well as medical evidence corroborate each other viz. that. Siddiq had fired at Qurban. Consequently, learned State Counsel has supported the conviction and sentences handed down to Panah and Siddiq whereas he has opined that as nothing has come on the record vis‑a‑vis the other appellants/accused they should he acquitted.

20. I have heard both the learned counsel and my conclusions are as follows: So far as the case of Panah is concerned with regard to Allahwadayo, it would be seen that both the ocular version as well as the medical evidence on the record support each other inasmuch as all the prosecution witnesses have specifically nominated Panah as having fired the fatal shot from his gun at Allahwadayo and both the doctors have opined that Allahwadayo died due to a single gunshot injury on the right side of his body. It would also been seen that although Mohib Ali who is one of the Mashirs of the Mashirnama of place of incident viz. Exh.22/A has disowned the said Mashirnama entirely, the same does record that besides other articles 13 empties of cartridges one empty of .303 rifle and six live bullets of K.K. were recovered. The said Mashir was declared hostile and cross‑examined when he admitted that the complainant party are his relations as well as the accused party. However, in my view, the testimony of Mohib Ali cannot be relied upon inasmuch as the other evidence on the record does suggest that the recoveries as above mentioned were made particularly the case property, which includes 13 empty cartridges, one empty of .303 rifle and six bullets of K.K. which is Exh.16 as well as deposition of Syed Sahib Shah, A.S.‑I. at P.P. Agra viz. Exh.No.29 wherein he has clearly mentioned the recoveries of crime‑empties, which could not he displaced in cross‑examination. So also, in my view, the motive for the crime in question has been clearly established by the prosecution viz. the matrimonial dispute over Mst. Shahul. As far as the issue regarding independent witnesses is concerned, it may be observed that unless some mala fides can be attached to the testimony of witnesses who are inter‑related, this cannot be rejected I outright. In my view, there do not appear to he any mala tides in the present case as the incident was witnessed by as many as six witnesses who were the inmates of the house. Consequently, in my opinion, Panah has been correctly convicted by the learned trial Court for the murder of Allahwadayo; hence I do not find any reason to interfere in such conviction as well as the sentence handed down to him under section 302, P.P.C.

21. As far as the case of Pariah with regard to Ali Sher is concerned learned counsel has submitted that there is some discrepancy between the medical evidence and ocular account inasmuch as Dr. Rahim has opined that the injury received by Ali Sher was caused by a rifle whereas Dr. Sadruddin who performed the post‑mortem examination has stated that it was caused by a gunshot. In this regard it would be seen that it was Dr. Sadruddin who carried out the post‑mortem examination and consequently, he had a better opportunity to see the wound suffered by Ali Sher. In my view, therefore, his opinion is more reliable since Dr. Rahim only had an opportunity to visually examine the deceased Ali Sher. I have already observed that the evidence of Dr. Sadruddin is supported by the ocular account which is worthy of credence. Consequently, in my opinion, the appellant Pariah has again been correctly convicted under section

302. P.P.C. for the murder of Ali Sher.

22. As far as the other sentences handed down to Pariah is concerned viz. under section 148, P.P.C. and sections 307, 326, 324 and 452 read with section 149, P.P.C. in my view firstly Panah has been correctly convicted under section 148, P.P.C. because it can be said that while committing the murder of the deceased he also committed the offences of rioting armed with a deadly weapon. However, there is no evidence at all that appellant Panah is a Thug within the meaning of section 326, P.P.C. which defines this category of person to be one who is habitually associated with others for the purpose of committing robbery or child stealing by means of or accompanied with Qatl since there is no evidence on this account at all. Even otherwise the punishment for being Thug has been prescribed under section 327, P.P.C. viz. imprisonment for life alongwith fine. Consequently, the punishment awarded to appellant Panah perhaps under section 327, P.P.C. is set aside. As regards application of section 307, P.P.C. which provides for cases in which Qisas for Qatl‑e- Amd shall not be enforced, I do not see as to how this section can be applied in the circumstances of the case. Accordingly I set aside the sentence as well as fine awarded to the appellant Pariah under section 307, P.P.C.

23. As regards the offence under section

324. P.P.C. which is attempt to murder, it would be seen that at least four prosecution witnesses viz. complainant Rajah Ali, P.W. Allahdad, P.W. Mst. Mahnaz and P.W. Ghulam Nabi had testified that Panah's third shot had hit Rajah Ali which is supported by the medical evidence on record viz. deposition of Dr. Sadruddin who had stated that the injured had received five injuries and 3 of them were caused by a gunshot. Consequently, in my opinion. Panah has again been correctly convicted by the learned trial Court under section 324, P.P.C. and hence I have no reason either to interfere with the same or the punishment awarded thereto.

24. Finally with regard to punishment awarded to Panah under section 452, P.P.C. again in my view, this was correct as it can be said that he had committed the offence of house‑trespass after preparing to cause hurt and assault as he was duly armed and did commit the murder of the two deceased and caused injuries .to the complainant Rajab Ali after trespassing into their houses.

25. Next, it is to be considered whether injury caused to P.W. Qurban can be attributed to the appellant Siddique. It would be seen in this respect that P.W. Qurban has testified that since Siddique had shot him with his gun. Although this is borne out by the medical evidence, however, there is no independent corroboration of Qurban's testimony against Siddique since none of the other P. Ws. have implicated Siddique. It would be also seen that after the initial attack on the complainant party a free fight ensued between them and the accused party as a result of which P.W. Mahnaz, P.W. Mattar and P.W. Allahdad received minor injuries, which have been authenticated by the Medical Officer as having been caused by a blunt weapon such as a Lathi. To the contrary, all the P.Ws. have deposed that the injury received by Mst. Mahnaz. Allahdad and Mattar as well as Rajab Ali were caused by gunshots. It has also come on the record through the evidence of the P.Ws. that the complainant party had caused injuries as well to the accused party. So also it would be seen that the incident occurred at about sunset and the accused allegedly resorted to indiscriminate firing. Consequently, it would be difficult to establish as to which of the accused fired at a particular person from the complainant party in the absence of independent corroboration. In these circumstances. I am not at all convinced that the injury caused to P.W. Qurban was at the hands of accused Siddique. Hence, I would acquit him of his conviction under section 324, P.P.C. So also there is nothing on the record to show that appellant Siddique had caused the murder of the deceased; accordingly, I would also acquit him of his conviction under sections 302/149, P.P.C. since, there is also nothing to show that either Siddique or the other Co‑accused had shared the common object with Panah of murdering the deceased or attempting to murder the complainant and/or Qurban. However, as Siddique's presence at the place of incident cannot be doubted for the reasons as recorded above. I would uphold the conviction and sentence handed down to him under sections 148 and 452, P.P.C. while setting aside his conviction under sections 307 and 326, P. P. C.

26. Finally, with regard to the cases of other appellants/accused viz. Sadiq, Leemo, Ali Gul, Sheroo, Noor Muhammad and Gulab, their presence at the scene of occurrence cannot be doubted in view of the testimony of all the P.Ws. from the complainant party, which is corroborative inter se. However, it cannot be said that they murdered the deceased or had any intention of causing the murder of the complainant party since none of the P.Ws, have stated anything in this regard viz. whether these accused caused any injuries to the complainant party as there is only a general allegation of indiscriminate firing etc. So also there is nothing on the record to, show that they shared the common objective with Panah of murdering the deceased or attempting to murder the other members of the complainant party. Furthermore, in the case of only the two deceased. Complainant. Rajab Ali and P.W.' Qurban has (sic) it been conclusively established that they received gun shot injuries and that appellant Panah caused these injuries to the deceased as well as Rajab Ali, To the contrary it has come on the record that the injuries suffered by Mst. Mahnaz, Mattar and Allahdad were caused by a hard and blunt substance. Consequently, the conviction of these accused and the punishment handed down to them under sections 302 and 324 read with section 149, P.P.C. is set aside and also that under sections 307 and 326, P.P.C. However, I would uphold their conviction under sections 148 and 452, P.P.C. Both these appeals are accordingly disposed of in terms of the foregoing orders. If the appellants/accused have completed their sentences they shall be released forthwith if not wanted in any other case. N.H.Q./S‑254/K Order accordingly.