1984 P Cr (PLP)

4. All the appellants were committed to trial Court on 31st January, 1975 to stand trial as the charge of offences punishable under sections 302/ 34, 323/34, 148, 302 and 323 read with section 149, P. P. C. The charge being improperly drawn, it was amended. Under the amended charge, the appellant Peeru stands charged with the offence punishable under section 302, P. P. C. and the other appellants namely Dadu, Mian Dino, Allah Bachayo and Amin also stand charged with the same offence punish able under section 302, P. P. C. read with section 34, P. P. C. for causing death of Wassayo deceased. The appellant Dadu stands further charged with the offences punishable under section 323, P. P. C. and the other appellants Peeru, Miandino, Allah Bachayo and Amin also stand charged with the same offence punishable under section 323, P. P. C. read with section 34, P. P. C. for causing hurt to P. W. Imam Bux. They have been tried on that charge on their pleading not guilty to it.

5. Prosecution had led evidence of Mir Muhammad Tapedar (P. W. 1), complainant Yamin (P. W. 2), Imam Bux (P. W. 3), Soomar (P. W. 4), Ali Bux Bunglani (P. W. 5), Hajio Menghwar (1'. W. 6), Ghulam Rasool mashir (P. W. 7), Haresingh mashir (P. W. 8), Allah Dino A. S. I. P. (P. W. 9), Shah Muhammad A. S. I. P. (the then H. C.) (P. W. 10), Amir Bux A. S. I. P. (P. W. 11). Dr. Sultan Mahmood (P. W. 12) and brought on record under section 509, Cr. P. C. the evidence of Medical Officer Umarkot, Dr. Muhammad Ayub, recorded in the lower Court. The appellants have not led any evidence in defence.

6. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants above-named, as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the memo. of appeal.

7. At the time of admission of the above appeal suo motu a notice was issued to appellant Peeru to show cause, why sentence awarded to him may not be enhanced and consequently suo motu Reference No. 33 of 1976 in this connection is also before me. Since both the matters arise out of common judgment, I have decided to dispose of the appeal as well as suo motu reference together.

8. The learned Advocate for the appellants in support of the above appeal submitted as under:- (a) That all the prosecution witnesses were disbelieved by the learned trial Court and as such there is no evidence on record to connect the above appellants with the murder of deceased Wassayo and injured Imam Bux. (b) That injury to P. W. Imam Bux is attributed to Dadu, who has not appealed from the impugned judgment and there is nothing on recording to attract the provision of section 34, P. P. C. so as to convict the present appellants for alleged injuries received by P. W. Imam Bux. (c) That injury to deceased Wassayo is no doubt attributed to appel lant Peeru, but the statements of the prosecution witnesses were not believed by the learned trial Court. In addition to this lathi alleged to have been recovered from appellant Peeru was not blood stained and further the said recovery was not relied upon by the learned trial Court. In view of this conviction of the appellants on the basis of the counter, F. I. R. which was not lodged by either of them and in the absence of any evidence on record to attract the provision of section 34, P. P. C. the conviction of the appellant Peeru under section 304, Part-II cannot legally be sustained. In support of his contention the learned Advocate for the appellants relied upon the case reported in P L D 1975 S C

607. The learned Advocate for the appellants also relied upon the cases reported in P L J 1981 Kar. 314 and 1978 S C M R 49 in support of the above contentions.

9. The learned Advocate appearing for the State on the other hand submitted, that he fully supports the impugned judgment as well as suo motu reference for enhancement of punishment as far as appellant Peeru is concerned, on account of the cogent reasons given by the learned trial Court in his impugned judgment, by which appellants have been convicted.

10. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R and Ps. of the learned trial Court as well as through the impugned judgment and the cases cited by the learned Advocate for the appellants.

11. The learned trial Court disbelieved the prosecution version of the incident in question, as well as the statements of prosecution witnesses and also did not rely on the alleged recoveries, as recoveries made from the appellants side had no blood stains on them. However, on the basis of the counter-F. I. R./complaint lodged by the appellants side, the learned trial Court came to the conclusion, that the encounter did take place between the complainant side and the appellant side as mentioned in the counter--F. I. R./complaint and in the said encounter deceased Wassayo and P. W. Imam Bux received injuries, as a result of which deceased Wassayo died. The learned trial Court in view of these facts came to the conclusion, that the injury received by the deceased Wassayo has been attributed to appellant Peeru and the injury received by P. W. Imam Bux is attributed to Dadu and consequently convicted appellant Peeru under sec tion 304 (II), P. P. C. by coming to the conclusion, that the appellant ex ceeded right of self-defence after the complainant side had left the buffaloes alleged to have been stolen by them. The learned Advocate for the appel lants submitted, that since the prosecution witnesses were not relied upon by the learned trial Court for cogent reasons, their statements regarding appellant Peeru having given fatal injury to deceased Wassayo should not have been accepted, specially as in the counter-complaint Exh. 38, it is mentioned, that appellant Peeru did not pursue the thieves after they had left the buffaloes and appellant Peeru returned back with the buffaloes and in the face of appellant Peeru's statement under section 342, Cr. P. C., in which the appellant has confirmed this fact. I find great force in this contention of the learned Advocate for the appellants. I find from the impugned judgment, that the learned trial Court has for cogent reasons not accepted the statements of the prosecution witnesses and consequently the prosecution version of the incident, in view of this, reliance on the very same prosecution witnesses for purposes of holding present appellants guilty of the offences charged, in my opinion, on the basis of presumption, by the learned trial Court was not at all warranted. Therefore, I am of opinion that prosecution has failed to establish its case against both the pre sent appellants, by any cogent evidence on record beyond reasonable doubt. There is no cogent evidence on record to attract the provisions of section 34, P. P. C. to the facts of the present case in my opinion. The cases cited by the learned Advocate for the appellants are applicable to the facts of the present case.

12. Therefore, I allow the above appeal and set aside conviction of the appellants and sentences awarded to them under the impugned judgment and acquit them by giving benefit of doubt and consequently dis charge the bail bonds executed by the appellants. In view of this, I also dismiss suo motu reference No. 33/76 and withdraw the notice for enhancement of sentences issued to the appellant Peeru. M. Y. H. Appeal accepted.