1992 P Cr (PLP)

(c) West Pakistan Arms Ordinance (XX of 1965)

S. 13-D

Appreciation of evidence

Recovery evidence had fully proved the case against accused

Conviction and sentence of accused were consequently maintained. Raja Qureshi for Appellants. S. Murtaza Hussain for the State. Dates of hearing: 5th and 6th November, 1984, This judgment will dispose of Criminal Appeal No.201 of 1982 and Criminal Appeal No.202 of 1982. In Criminal Appeal No.201 of 1982, there are four appellants namely Abdul -Hamid, Anwar Ali and Barkat Ali, all sons of Mahboobullah; and Mukhtar Ahmad son of Ghori. The four appellants had been convicted by the learned Sessions Judge, Thatta, in Sessions Case No.9 of 1980, by his judgment, dated 28-11-1982. Appellant Abdul Hamid had been convicted under sections 302 and 504, P.P.C. and sentenced under section 302, P.P.C. to life imprisonment and a fine of Rs.5,000 or in default of payment of fine to undergo R.I. for six months. Under section 504, P.P.C. Abdul Hamid had been sentenced to undergo R.I. for one year. Besides the fine, appellant Abdul Hamid had also been ordered to pay compensation of Rs.5,000 to the heirs of the deceased or in default of payment of compensation he had been ordered to undergo R.I. for six months more. Appellants Nos.2, 3 and 4, namely Anwar Ali, Barkat Ali and Mukhtar Ahmad had been convicted under section 504 read with section 34, P.P.C. and sentenced to undergo R.I. for one year each. Criminal Appeal No.202 of 1982 had been filed by Abdul Hamid son of Mahboobullah. who had been convicted under section 13-D of the Arms Ordinance, 1965, and sentenced to undergo R.I. for two years by judgment, dated 28-11-1982, in Sessions Case No.10 of 1980. I have heard Mr. Raja Qureshi, learned counsel for the appellants and Mr. S. Murtaza Hussain, learned counsel for the State.

2. The deceased in this case is Abdullah, brother of the complainant, Ali Muhammad. The incident is supposed to have taken place on 24-2-1980 at 2-30 p.m. on the Western bank of Indus River at a distance of about 5 miles to the North-East of Police Station Ghora Bari, District Thatta. The F.I.R., which was lodged by complainant, Ali Muhammad, at 3-30 p.m. on the same day, is as under:-- "I, my brother Abdullah alias Billa, my father Aaroo, cousin Aboo Bakar son of Osman are doing fishing work with fishing nets. Today our boats were parked at the bank of Indus River. I, brother Abdullah alias Billa,

3. Aboo Bakar son of Osman,

4. Father Aaroo were preparing the fishing nets together at the bank of river in Deh Sanawalpur. Today at about 2-00 p.m. Abdul Hamid alias Karo son of Mehboobullah duly armed with a .12 bore gun,

2. Anwar son of Mehboobullah,

3. Barkat son of Mehboobullah

4. Mukhtar son of Ghori all by cast Shaikh who were empty-handed came to us near the river. They told us that we should get them the river crossed as they will go for hunting. Upon this my brother Abdullah alias Billa told the above accused that they should wait and that we will get them the river crossed after preparing the fishing nets. Upon this all the accused abused and asked us to get them the river crossed very soon. Upon this we told them not to abuse and not to make haste. Upon this accused Abdul Hameed alias Karo armed the gun with which he was armed and fired a direct shot at my brother, Abdullah alias Billa. My brother on receiving gun-shot raised a cry bleeding. We raised cries, whereupon, the accused ran away towards North. We saw our brother Abdullah alias Billa and found him to be dead on receiving gun-shot. He had received a gun-shot a little above his nipple. Thereafter, many people came running there. Thereafter, I after leaving father Aaroo, cousin Aboo Bakar and others at the place of occurrence in charge of the dead body, have come here to lodge report. I lodge report that above accused persons, having conspired among themselves, have attacked and murdered my brother Abdullah alias Billa. Justice be done." Three eye-witnesses were examined by the prosecution, namely P.W.2 complainant Ali Muhammad (brother of the deceased), P.W.3 Aaroo (father of the deceased) and P.W.4 Aboo Bakar (cousin of deceased). One empty cartridge was recovered from the scene of incident and on the same day after arrest of the accused, the appellant Abdul Hamid produced a gun. Ballistic Expert's opinion was obtained and the report is available on the record. Common Mashir Muhammad was examined. Medical evidence is given by Dr. Bashir Ahmad, who proved the post-mortem report. Investigating Officer is Bashir Ahmad, who has also given evidence. In his statement under section 342, Cr.P.C. the appellant Abdul Hamid denied the allegations against him and stated that he had not produced any gun before the police. He further stated as follows:-- "As I own agricultural land in Deh Sanawalpur which I used to cultivate, the complainant used to pas! from our land, on which I asked him not to pass from my land as my crop is going to be destroyed, but in spite of that he used to pass from my lands. Therefore, I strictly prevented them to enter into my land and due to that enmity I have been implicated falsely. There was dispute between contractor and complainant who were fisher-men and the incident was caused by contractor due to that dispute." The other three appellants also denied the allegations against them and stated that their statement is the same as of appellant Abdul Hamid.

3. It was first contended by the learned counsel for the appellants that from the evidence of the prosecution itself it appears that the eye-witnesses were not present at the time the incident had taken place. Learned counsel for the appellants invited my attention to page 37 of the paper book, whereby in the cross-examination of P.W. Aboo Bakar it is recorded as follows:-- "Nobody else except we people came at the Wardat exactly at the time deceased was fired at." When the evidence of Aboo Bakar and other eye-witness is perused, such evidence does not give any indication that according to these witnesses they were not present when the incident had taken place. What Aboo Bakar has A stated in his cross-examination is that at the time the incident had taken place they were present and nobody else came at the Wardat at the time the incident had taken place and other people came after sometime. Then it was submitted that there is no mention of any empty cartridge in the F.I.R. From the nomination of the empty cartridge in the F.I.R., it cannot be inferred or it is necessarily to be implied that the complainant and other eye-witnesses were not present when the incident had taken place. I find that all material particulars have been given in the F.I.R.

4. It was then contended that according to prosecution story, the accused 'were going for hunting and if this were true it is unbelievable that three persons were empty-handed and only one that is Abdul Hamid appellant had a gun. According to the learned counsel, this indicates that the prosecution story was doubtful. I find nothing unbelievable in this aspect of the case. If the four accused came and told the prosecution witnesses that they were going for hunting and wanted to cross the river and this is -related by the prosecution witnesses, the fact that three of the accused were empty-handed does not make the version of the prosecution witnesses unbelievable.

5. It was also contended by the learned counsel for the appellants that there was a delay in sending of the recovered articles for report of the Ballistic Expert. According to the learned counsel, there is a delay of about three months in sending of the recovered articles to the Ballistic Expert. The Investigating Officer had appeared in the witness-box. The report of the Ballistic Expert has been brought on record. There is no cross-examination of the Investigating Officer about explaining the reasons for not sending the recovered articles earlier to the Ballistic Expert. No request was also made for the examination of the Ballistic Expert. In these circumstances, I find no merit in this contention.

6. Mr. Raja Qureshi, learned counsel for the appellants also contended that in this case the Mashir, who had been examined as a witness i.e. Muhammad son of Phul, was a close relative of the complainant and deceased. In this case the Investigating Officer has also given evidence about the Mashirnama and in the facts and circumstances of this case the recoveries cannot be disbelieved merely on the ground that one of the Mashirs was related to the complainant party.

7. Learned counsel for the appellants then contended that there is discrepancy in the evidence of the Ballistic Expert, Investigating Officer and Mashir Muhammad son of Phul about the recovery of the gun, that is, whether it was recovered in one piece or in several pieces. There is some contradiction about the evidence of Ballistic Expert and the Investigating Officer on this point but it does not demolish the prosecution case about the recovery of the crime gun from the appellant Abdul Hamid. The report of the Ballistic Expert is on record and it shows that the crime empty recovered from the scene of the incident was fired at from the .12 bore shot-gun recovered from the appellant Abdul Hamid.

8. An argument had also been raised on behalf of the appellants that there was a conflict in the ocular testimony and the medical evidence about the distance from which the gun was fired at. The medical evidence shows that there was blackening of the skin and the doctor in his evidence has stated that from the nature of the injury on the person of the deceased he could say that it could have been caused from a close range of about one foot. I have found no conflict in the evidence of the eye-witnesses and the doctor in respect of the p distance, from which the shot was fired at the victim. The ocular testimonv clearly indicates that the shot was fired at from a very close range, as the parties were talking to each other. Medical evidence also shows that shot was fired from a very close range. There is no cross-examination of the eye witnesses that the shot was not fired from a close range or that when the shot was fired, appellant Muhammad was standing at quite so-me distance from the deceased. It was also argued that the evidence indicated that the incident had happened prior to 2-30 p.m., which is the time given in the F.I.R. and the evidence of the witnesses. Neither the evidence of the witnesses nor the medical evidence shows that incident had taken place much prior to the time given in the F.I.R. Finally it was contended that this was a licensed gun and the owner of the licence had apparently produced a licence but the owner of the gun was not examined as a witness by the prosecution. The non-examination of the person, who held at licence for the gun in question, does not demolish the case of the prosecution or raise any reasonable doubt about the firing of the gun by appellant Abdul Hamid at the deceased.

9. In my view, on the state of evidence on record, the case under section 302, P.P.C. had been established beyond any reasonable doubt as against appellant Abdul Hamid. However, on the evidence, no case at all had been made out against the other three appellants. The other three appellants namely Anwar Ali, Barkat Ali and Mukhtar Ahmed were neither armed nor any action is attributed to them. In fact the main allegations are only against appellant Abdul Hamid. On the evidence it would be unsafe to attribute any common intention to commit any crime on the part of these three appellants. Their conviction, under section 504, P.P.C. is liable to be set aside.

10. Criminal Appeal No. 202 of 1982 arises out of the order, dated 28-11-1982 of the learned Sessions Judge, Thatta, convicting the appellant Abdul Hamid under section 13-D of the Arms Ordinance, 1965, and sentencing him to suffer R.I. for two years. The conviction was based on the evidence of Mashir Muhammad and S.H.O. Bashir Ahmed. Their evidence proved the case under section 13-D of the Arms Ordinance against appellant Abdul Hamid. I F find no reason or justification to set aside the conviction of the appellant Abdul Hamid under section 13-D of the Arms Ordinance, 1965, by the learned Sessions Judge, Thatta.

11. Criminal Appeal No.202 of 1982 is dismissed. As regards the Criminal Appeal No.201 of 1982, the conviction and sentence of appellants Anwar Ali G soon of Mahboobullah, Barkat Ali son of Mahboobullah and Mukhtar Ahmed son of Ghouri are set aside. They are on bail from this Court. Their bail bonds arc: discharged. The appeal of appellant Abdul Hamid son of Mahboobullah against his conviction and sentence under sections 302 and 504, P.P.C. by the f H judgment, dated 2S-11-1982 of the learned Sessions Judge, Thatta, is, however, j dismissed. N.H.Q./A-1100/K Order accordingly.