2008 PLP 1505 (MLD)

KHAWAJA NAVEED AHMED, J.

This appeal has been filed by the Appellants namely Saleem son of Ali Muhammad, Haider son of Abdullah, Yaqoob alias Lala son of Mamoon, Eidoo son of Allandino, Khuda Bux son of Mamoon, Abdul Karim son of Qadoo, Karim Bux son of Baboo and Moosa son of Karo against the judgment passed by the learned II Additional District and Sessions Judge, Thatta, dated 29-11-2007 in Sessions Case No.65 of 2000 arising out of Crime No.17 of 2000, P.S. M/Sakro, under sections 302, 324, 147, 148, 149, 504, 114, 337-A(ii), 337-L(ii), P.P.C.

2. Brief facts of the prosecution case are that complainant Muhammad Ramzan son of Karo had lodged F.I.R. at Police Station Sakro on 14-3-2000 at 2130 hours, stating therein that he owns a tea hotel at Takani Bus stop. Mumtaz son of Muhammad Rahim Shoro is his employee. On 14-3-2000 in the evening Ali Nawaz, Noor Ahmed, Gul Hassan, Basario and Muhammad Hassan had come at the hotel of the complainant and sat there. At about 2030 hours, Accused Saleem son of Ali Muhammad duly armed with pistol, Yaqoob alias Lala armed with hatchet, Moosa son of Karo, Eidoo, Khuda Bux, Karim Bux, Abdul Karim were armed with Lathis. As soon as they entered into the hotel they started abusing Ali Nawaz and told him that they has been repeatedly asked to sell the land adjacent to their land to them, but Ali Nawaz is not agreeing to it. Ali Nawaz told them that hey should behave like a gentlemen and stop abusing, in the meantime Abdul Karim Seendhar instigated all the accused persons not to abuse to Ali Nawaz. Slaeem had opened straight fire with his pistol to Ali Nawaz with intention to kill him. The bullet had hit on the abdomen and left leg of the deceased. In the meantime accused Yaqoob gave hatchet blow to Gul Hassan on his head, Moosa gave lathi blow on the right hand and other parts of the body of the complainant. Noor Muhammad had received lathi blows at his back, Khuda Bux gave lathi blow to Mumtaz, Karim Bux gave lathi blow to Basario, Haider gave lathi blow to Noor Ahmed. On the intervention of other people accused had run away. The injured were taken to Mirpur Sakro Hospital and complainant had gone to lodge the F.I.R. Police had registered the case and had arrested accused persons, who were challaned and were put to trial.

3. The charge framed by the Court is reproduced hereunder:-- "I, Sirajuddin Qureshi, II Additional District Judge, Thatta do hereby charge you:--

1. Saleem son of Ali Muhammad b/c Seendhar.

2. Hyder son of Abdullah b/c Seendhar

3. Yakoob alias Lala son of Mamoon b/c Warriyo

4. Eidoo son of Alandino b/c Seendhar

5. Khuda Bux son of Mamoon b/c Warriyo

6. Abdul Karim son of Qadoo b/c Seendhar

7. Karim Bux son of Baboo b/c Seendhar

8. Moosa son of Karo b/c Seendhar As under:-- That on or about 14-3-2000 at about 2030 hours at the hotel of complainant situated at Takani Bus stop, Taluka Mirpur Sakro District Thata with common intention formed unlawful assembly duly armed with deadly weapons and abusing the complainant party and thereby committed an offence punishable under sections 147, 148, 149 & 504, P.P.C. within the cognizance of this Court. And I, further charge you that on the same date, time and place you accused Saleem made fire shots upon Ali Nawaz which hit him on the back and belly and one fire hit to P.W. Muhammad Hassan on his left leg, you accused Yakoob caused sharp side hatchet blows on the head of P.W. Gul Hassan, you accused Eidoo caused lathi blow to P.W. Noor Ahmed and you accused Khuda Bux caused lathi blow to P.W. Mumtaz and caused them injuries with intention to kill them and thereby you had committed an offence punishable under sections 324, 337-A (ii), 337-F(i), 337-L(ii), P.P.C. within the cognizance of this Court. And I also further charge you that due to the fire shots injuries, caused murder of Ali Nawaz and thereby you had committed an offence punishable under section 302, P.P.C. within the cognizance of this Court. And I hereby direct that you be tried by this Court for the above said charge. (Sirajuddin Quraishi) IInd. Addl. Sessions Judge, Thatta".

4. Appellants had pleaded not guilty to the charge and had claimed trial. Prosecution in support of its case had examined following witnesses:-

1. Ramzan Complainant as Exh.13

2. Mumtaz as Exh.14

3. Noor Muhammad as Exh.15

4. Gul Hassan as Exh.16

5. Muhammad Hassan as Exh.17

6. Basario as Exh.18

7. Dr. Muhammad Yaqoob as Exh.21

8. Muhammad Rahim as Exh.22

9. Muhammad Jununan as Exh.23

10. A.S.-I. Hameer Khan as Exh.24

5. The accused were examined under section 342, Cr.P.C. They have not examined themselves on oath. No defence witness has been examined by the accused persons.

6. The trial Court had framed following points for determination: (i) Whether deceased Ali Nawaz died un-natural death as a result of injuries caused to him by means of TT Pistol? (ii) Whether the present accused committed Qatle-Amd of the deceased Ali Nawaz by giving fire shot injuries on the relevant date and time as alleged? (iii) What should the result be?

7. The learned trial Court upon the ocular testimony as well as medial evidence had replied Point No.1 in affirmative, which even other-wise has not been disputed by the defence. The deceased on his person had received following injuries:-- Injury No.1 Penetrating would 5 c.m. x diameter circular in shape with inverted margins on right lumber region of back. No bleeding tattooing seen around the would (wound of entry) Injury No.2 Penetrating would 5 c.m. x diameter circular in shape with inverted margins over back of chest of right side at level of 8th thoracic vertebra. No bleeding tattooing seen around the would (wound of entry) corresponding hole present on shirt no bleeding seen around the hole. Injury No.3 Lacerted would 0.1 c.m. in diameter with everted margins just blow umbilicus (wound of exit)

8. The main arguments of the learned counsel is that the ocular testimony is in contradiction with medical evidence and as such accused are liable to be acquitted.

9. I am not in agreement with the learned counsel for the appellants. In case reported in SCMR 2001, page 424, (Imran Ashraf and 7 others v. The State at para. No.48 at page 492 the Honourable Supreme Court has observed as under: "(48) Prosecution produced post-mortem reports of the deceased as Exhs. PC/1, PD/1, PE/1, PF/1, PG/1, PH/1 PI/1, PJ/1 through various doctors perusal whereof confirm their deaths with the fire-arms therefore, the happening of incident cannot be denied during course whereof 8 persons were done to death. However, these pieces of evidence cannot furnish corroboration to the ocular testimony and the other evidence discussed hereinabove in view of the principle of law that such evidence being supporting in its nature can only be helpful to prosecution if it had succeeded in establishing its case on basis of direct ocular or circumstantial evidence against the accused. Reference in this behalf may be made to the case of Muhammad Hanif v. The State (PLD 1993 SC 895)."

10. Another argument raised by the learned counsel for the appellants is regarding substitution of the set of accused persons. The fact remains that one man has died in this incident and others have received injuries. There is ocular testimony in this case against the present appellants. Injured eye-witnesses are alive. Fatal shot has been attributed to appellant Saleem son of Muhammad. Theory of substitution of accused is a rare phenomena, which is never used in the cases like one in hand, which has occurred on public place like hotel where number of other persons are sitting, lights are on and incident was witnessed by a crowd. The theory of substitution is mostly used in blind cases which are not witnessed by eye-witnesses and the complainant has option in hand to name any person into the case keeping in view the motive and scale of enmity with a particular person. The present case is of a different nature. It has been witnessed by eye-witness, who have supported the prosecution version in their evidence at the trial. The inquest report of the deceased prepared by the police at the first instance shows that deceased was bleeding from abdomen. In the circumstances my humble view is that prosecution has successfully proved its case against the accused persons and the learned II ADJ, Thatta has rightly convicted the accused persons. I uphold the order of the learned II ADJ, Thatta and dismiss the appeal. However, sentence and conviction of the main accused remains the same, while the sentences of the other accused who have been charged with causing injuries to the prosecution witnesses have been reduced to already undergone.

11. These are the reasons of the short order passed by me on 19-2-2008 in above criminal appeal. H.B.T./S-58/K Appeal dismissed.