1969 P Cr (PLP)

Other cases are Ahmed Khan v. The State (P L D 1962 Lah. 390) ; Khair Muhammad v. The State (P L D 1966 Kar. 321) ; Abdul Raziq v. The State (P L D 1964 Pesh. 67) and Bacho and others v. The State (P L D 1963 Kar. 891). This legal position is not disputed by the learned Assistant Advocate‑General. Relying upon the ocular evidence corroborated by motive the trial Court has convicted the six appellants and acquitted their seven co‑accused for the reasons stated above. All this evidence is vehemently criticised on behalf of the appellants. We must remember that 14 accused persons were tried for the murder of three persons and injuries to 5 prosecution witnesses. Evidence on record shows that complainant party consisted of 13 persons and their assailants were fourteen. We have already pointed out that one of the accused persons died during the pendency of the trial. It is strange to find that none of the accused persons had received any injury. Another surprising fact is that none of the complainant party had received any injury with hatchet or with a pistol though six accused persons are alleged to have been armed with hatchets. Two accused persons, namely, Abdus Sattar Shaikh and Sabu were not identified by any of the prosecution witnesses. The learned Additional Sessions Judge had observed that Abdus Sattar and deceased Sabu "were admittedly not picked out in the identification test though the contention of the above‑mentioned prosecution witnesses is to the contrary." This fact is proved by Abdur Rahim and Allah Bachaio, D. W. 1 and D. W.

2. It would mean that two innocent persons were involved falsely by these prosecution witnesses. The learned counsel for the appellants had pointed out that the victims were shot at spots which are beyond the effective shooting range. In support of this argument he has mainly relied upon the evidence of the Tepedar who had produced the sketch. It is evident from the facts stated above that the talks between the two parties were in progress when the three accused persons are said to have instigated their accomplices whereupon they had fired their guns. It would mean that the victims must be very close to their assailants. This position has been resiled from as it is clear from the evidence of the Tapedar. His evidence shows that these spot; or places were pointed out to him by Haji Bulo and Jurio who are said to be eye‑witnesses. "C" indicates the spot where Saindad was injured and it is 249 feet away from "A" which is the place where accused persons were standing. Saindad had died at "D" which is 320 feet away from "A". Hafiz Sidik had died at "E" which is 327 feet away from "A". "F" indicates the place where P. W. Dilawar was injured and it is 257 feet away from "A". Ghulam Muhammad was injured at "G" and it is 247 feet away from "A". "H" indicates the spot where Khuda Bux was injured and it is 240 ft. away from "A", and Kadir Bux was injured at "I" which is 234 ft. away from "A". Kassim was injured at "J" which is 229 ft. away from "A". Haji Bulo, Jurio. Shah Muhammad, Bachal and Bakasho were standing at "L" which is only 160 ft. away from "A" and in the same direction, namely its North. It would mean that these witnesses were not assaulted or injured by their assaultants though they were standing nearer than the injured persons. It was urged before us that effective shooting range of a gun is about 250 feet and beyond it the pellets would not cause fatal injuries. We would like refer to the medical opinion on this point, viz. the distance Evidence of Dr. Ali Muhammad reads as follows: "I cannot say if Saindad could have been able to walk after the receipt of injuries. He may have been fired at the distance of about 12 to 15 feet and Hafiz Siddik from about 15 feet Kandero 10 to 12 feet. Khuda Bux from about 15 to 20 feet. Ghulam Muhammad from 20 to 25 feet. Dilawar from 12 to 15 feet. Muhammad Kassim from 25 to 33 feet and Kadir Bux from about 30 feet." In view of this discrepancy in the evidence of the medical officer and the Tapedar it is strange to find that the learned Additional Sessions Judge has observed: "the place of incident has not at all been disputed." Similarly, time of incident has been disputed by the appellants. It is evident from the facts stated above that according to the prosecution, incident had taken place at 3 p.m. on 20‑6‑1963 while report was lodged on the same day at 6‑30 p.m. at Tando Bago Police Station which is at a distance of about 6 miles. Appellants had contended that this incident must have taken place in the early morning of 20th June 1963. They have mainly relied upon the statement of injured Dilawar. As he was in precurious condition, Third Class Magistrate was called to record his dying declaration and it is Exh.

108. Its perusal shows that this incident had taken place at about 10 a.m. Note added to this statement reads as follows :‑ "The injured at this time is not in the proper senses and is not able to speak. Further enquiry is not being made from him." Dilawar is Exh. 82, and his evidence on this point reads as follows :‑ "I received injuries on my face, arias and chest. I fell unconscious I re‑gained my conscious on the next day of the incident in Civil Hospital Hyderabad .... I cannot say whether Police recorded my statement . . . . . I do not know whether my statement was recorded is the Hospital by a Magistrate . . . . . I had not stated in any statement before the Magistrate that I was a guest of Shah Muhammad Jamali where I had come at 10 a.m." This statement was recorded by the Magistrate in the presence of `Medical Officer Tando Bago (Dr. Ali Muhammad). His statement on this point reads as follows :‑ "I was in the Dispensary from 9 p.m. to 12 p.m. Mr. Allah Bachayo Head Munshi and III Class Magistrate Tando Bago had come to the Dispensary on that night to record statement of Dilawar. I was present when he came and questioned Dilawar. I do remember a little that Head Munshi had written something. I do not remember whether Dilawar made any reply to the Head Munshi or the writing was in the nature of statement or not. It is possible that Head Munshi took my signature also, on the writing that he was not able to give his statement. I see true copy of the statement of Dilawar and say that the questions and answer in the statement were put to Dilawar and his answers obtained. I produce the true copy of Exh.

108. The original statement was signed by me." The learned Additional Sessions Judge has not accepted this intention of the appellants. He had observed that‑ "he also refused to thumb mark a statement" Refusal thumb mark his statement would indicate that Dilawar must be in full senses at that time. The reasons given by him for disbelieving this evidence are not sound. Another factor which supports the appellant's version is the fact that the stomachs of the three deceased persons were found to be empty. Dr. Ali Muhammad had clearly stated that‑ "In the case of all the three deceased Saindad, Hafiz Siddik and Haji Kandero their stomachs were empty. I have mentioned that fact in my lower Court deposition as well as in my post‑mortem notes. In my opinion it is possible that the three deceased might not have taken their food on that date of incident." This medical opinion is also disregarded by the trial Court. The learned Additional Sessions Judge has observed that the villagers take their lunch late in the afternoon and further that their break fast is very light. There is nothing on the record to raise this kind of general remark. There is no evidence on record to show that these three deceased persons had worked in their fields on that day. The evidence on record shows that Hafiz Siddiq was shot dead while he was standing in front of his house on Thala. Haji Bulo had called some witnesses from their houses and the remaining prosecution witnesses had reached the vardat in the meantime. The conclusions arrived at by the learned Additional Sessions Judge are, therefore, without any substance basis. All this discussion raises a strong suspicion in our mind with regard to the time of the incident. He has not discussed the pleas of enmity and alibi raised by the accused persons. Docu mentary evidence was brought on record by them and the learned Additional Sessions Judge has not referred to these documents at all. He has accepted the prosecution evidence without referring to these pleas. He should have discussed the prosecution evidence in the light of the pleas raised by the accused persons. With regard to motive he is of view that ocular evidence is strongly supported by it. Prosecution case is that uncultivated survey No. 29 was in their possession since 1950 and they had cultivated it on Yak Sala Lease Basis. It measures about 380 acres. They have further alleged that appellant Allahdino Bhana had acquired this land on Tractor Basis Scheme in the year 1960‑61, and lastly, that they had obtained a stay order from the Board of Revenue, during the pendency of their appeal. Reference has already been made to defence pleas on this point. It is surprising to note that First Report, Exh. 12, does not refer to the appeal filed by the complainant party or that stay order had been issued by the Revenue Board. This order appears at page 37 of the paper book, and it is dated 25‑5‑1963. The relevant portion is reproduced below :‑ "I am directed to acknowledge the receipt of your petition dated 9th March 1963 on the subject noted above and state that it is receiving attention. The director G. M. B. Project Hyderabad is being requested to maintain status quo pending decision of your appeal." It is signed by Reader to Member Board of Revenue, West Pakistan, P. W. 14, Nek Muhammad is a Senior Clerk Barrage Mukhtiarkar at Tando Bago. His evidence Exh. 88 shows that their office had received a copy of the status quo order from the Board of Revenue, Exh. 89 in the appeal filed by Umer and six Jamalis of Tando Bago. His evidence further recites that this order was despatched on 20th June 1963 from the office of the Revenue Officer G. M. B. Project and was received in his office on 22nd June 1963 and "on that day Mukhtiarkar directed the Head Munshi to comply with that order. The endorsement on the letter shows the issue of stay order from the office on 22nd June 1963, with the signature of Mukhtiarkar." He has further stated that the appeal had now been decided b; the Board of Revenue. While narrating the facts we have pointed out recital in the judgment which shows that appellant Allahdino Bhana had acquired this land in the year 1960‑

61. Their case is that they have been in cultivating possession of this land from that year. Exh. 158, appearing at page 218 of the paper book is the certificate granted to appellant Allahdino Bhana showing that he was in possession of this land measuring about 250 acres from 1962‑

63. He gets support from P. W. Abdul Aziz, Tapedar, Exh.

38. He had produced assessment bills Exhs. 40/1 and 41 which show that appellant Allahdino was in cultivating possession in portions of Survey No.

29. These bills appear at pages 72 to

74. In view of this position, the learned counsel for the appellants had urged before us that when this incident took place on 20th June 1963, the land under dispute was in possession of the appellants and further that they had no knowledge of the stay order issued by the Revenue Board.

8. We have already discussed the appellants plea that the vardat alleged by the prosecution is not the real scene of offence in support of this plea we were referred to the Mashirnama of vardat Exh. 31 (pages 52 and 53 of the paper book). The relevant passage in it reads as follows :‑ "Outside this fence to the east the corpse of deceased Haji Kandero and injured Khuda Bux, Ghulam Muhammad Dilawar, Muhammad Kassim and Kadir Bux were lying on the ground. To the West of the fence and along it, there are Jar trees and to the north there is an open maidan and 50 paces away from there is a School and beyond it about 40 paces away are the houses of Haji Bulo and other Jamalis. To the south of the hedge there is an open maidan, and beyond it about 2 acres away there is a landhi which is newly constructed." Muhammad Ramzan, Head Constable Police, Exh. 110, was the first police officer who had reached the vardat. He had stated before the trial Court as follows :‑ "The dead body of Saindad was lying at the entrance of his house inside the hedge. The dead body of Hafiz Muhammad Siddik was lying on the Thalla of his house inside the hedge. There was no blood on the ground, but there was blood on the trees and the clothes of the deceased and the injured persons. . . . . Dilawar injured was lying in front of the Landhi. There was pool of blood there." The learned counsel for the appellants had, therefore, urged before us that no blood was found by this Police Officer at the place where dead bodies of Saindad and Muhammad Siddiq were lying. He had found blood on the trees which according to him are the Jar trees mentioned in the Mashirnama, Exh.

31. The evidence of this Police officer shows that Dilawar (injured) was lying in front of the newly constructed but. This position is contradicted by the Tapedar who had stated before the trial Court that injured Dilawar was lying at the spot marked `F' in the sketch and further that it was 257 ft. away from `A'.

9. The learned counsel for the appellants had also urged before us that there was no corroborative evidence in support of the ocular evidence of interested prosecution witnesses. Out of six persons who have been convicted, four are by caste Bhana while Khamoon is by caste Khaskheli and lastly Haji is Malah by caste. Allahdino Bhana is the principal accused as the land under dispute was acquired by him as stated above. Appellants Hashim, Kassim and Muhammad are related to him. We have already stated that they have raised pleas of enmity as well as of alibi but the learned Additional Sessions Judge has not touched this question at all. There is no evidence on record to suggest that appellants Khamoon and Haji are connected with main accused or are interested in the land under dispute. We, there fore, agree with the learned counsel for the appellants that these two appellants had no motive or reason to participate in this incident. Without taking into consideration the pleas raised by the appellants it cannot be said that the prosecution has proved the motive. It is, therefore, apparent that ocular evidence of interested witnesses is not supported by evidence of any kind on record. First Report Exh. 12 mentions that Saindad Jamali had informed him that certain persons by caste Bhana, Dal and Muhanas and other people had constructed an otak. There is no accused person by caste Muhanas. This First Report does not mention Shaikh and Athelo.

10. All these factors create a strong suspicion in our mind about the veracity of the interested witnesses. They had implicated as many as 14 persons for murdering three persons and causing injuries to five more members of their party. Apparently their assailants must be more than one in number. The injuries show that the assailants were armed with fire arms and not with hatchets. It would mean that six persons who were armed with hatchets have been falsely implicated. Prosecution has failed to prove that any injury was caused by pistol. First Report does not mention that any persons by caste Shaikh or Athelo was present at the site. The prosecution witnesses had failed to pick out accused Abdus Sattar and Sabu at the identification Parade. All these factors show that the prosecution has highly exaggerated its version and have falsely implicated some of the accused persons. They have also failed to prove that the land under dispute was in their possession when this incident took place. Similarly, vardat and time of the incident have not been prove by them beyond reasonable doubt. For all these reasons we hold that prosecution has failed to prove the guilt of Khamoon Khaskheli, Haji Malah, Hashim Bhatio, Kassim Bhano, Allahdino Bhano and Muhammad Bhano beyond a reasonable doubt. We, therefore, accept their appeals and set aside their convictions and sentences. They should be released forthwith in case they are not required in any other case. Reference made by the trial Court is disposed of accordingly. Appeals accepted.