1983 P Cr (PLP)

8. Dr. Shafi Mohammad examined the dead body on 28th February, 1975 and conducted the autopsy at 9‑30 a. m. He found the following external injuries on the dead body :‑ (1) One lacerated punctured wound 3" x " x fracture of vertebrae on neck left side. Charring present. (2) Eight lacerated punctured wounds each " in diameter on chest right side upper part. No charring (wound of entry). (3) Lacerated punctured wound '' x " fracture of bone in left index finger. Charring present. (4) Lacerated punctured wound " x '' x fracture of bone on left middle finger dorsally. Charring present. (5) Contusion " x " on left ring finger dorsally. (6) Three lacerated punctured wounds each " in diameter on back just left to mid line left side. No charring (wound of entry). Four pellets, two from chest cavity, one from back and one from neck removed and preserved.

9. In the opinion of the Medical officer injuries Nos. 1 and 2 individually and all collectively were sufficient in the ordinary course of nature to cause death.

10. The evidence of the complainant is that he had come to Ratodero from his village in order to take his clothes from a tailor. He could not contact the tailor master and then met the deceased who was an old man of 65 years and doing Tababat (running a Matab) at Ratodero. At 4‑30 p. m. they proceeded by foot to travel for four miles towards their village along the road. They covered distance of two miles when they were assaulted by gun‑men. The gun‑men suddenly emerged from the bushes on the western side of the road and who were known to them, opened fire and each one of them fired one shot at the deceased. The gun‑men were identified to be Kalandar Bux, Shah Bux and Khadim Hussain. After firing the shots they came near the deceased who had collapsed on the ground, dragged him towards the burrow pits. The complainant was at a distance of 10‑I1 feet behind the deceased and he was threatened. In the meantime a tonga driven by Karim Dino in which P. W. Ashraf was sitting came from Ratodero side and stopped at a dis tance of 40 paces. Karim Dino and Mohammad Ashraf witnessed the firing by the accused/ respondents. The complainant further stated in his deposition that he deputed Karim Dino to inform the villagers and he and Ashraf sat at the dead body.. From the village only two persons came and they were Mohammad Uris and Ali Hasan. After their arrival he repaired to the Police Station Ratodero and registered the F. I. R. at 7‑30 p. m.

11. P. Ws. Karim Dino and Mohammad Ashraf have both averred to the effect that they were travelling in a tonga from Ratodero side and when reached near the vardat, they had seen respondents Kalandar Bux, Shah Bux and Khadim Hussain armed with guns and firing at the deceased whereupon deceased fell down. The accused dragged the deceased towards road side. The purpose of the visit to Ratodero as given by the two witnesses is that Karim Dino had taken the `Mava' on the tonga to sell the same while Mohammad Ashraf had gone with his private work and met the tongawala Karim Dino at the bus‑stop, and took a lift in the tonga.

12. Ocular testimony consists only of these three witnesses. In the cross‑examination P. W. Ghous Bux admits that he is son of the sister of the deceased: He has admitted, the antagonism and the criminal litigation between them and the accused persons. Karim Dino has admitted that Sultan is his brother. Although he denies the fact that his brother Sultan was a witness against accused Khadim Hussain in a case of causing injuries by him. Similarly Mohammad Ashraf denies a suggestion that his father was a Hari of Saindad who is father‑in‑law of deceased Molvi Mohammad Ibrahim.

13. Broad circumstances which bear on the present case are that there is a bus service between Ratodero and village of the complainant. The deceased happens to be of the age of 65 years. There was hardly any need for this old man to go by foot from Ratodero to his village covering substantial distance of two miles up to vardat. The circumstance of assailants being hidden in ambush suggests that they knew that the deceased would pass by this point of the road. Respondents also belong to the same village of the deceased and after committing murder, with guns, would not be present in the house during the night time, as is the prosecution case. This is against human conduct and behaviour. The accused/respondents have readily produced the licensed guns. There are the circumstances which surround the incident.

14. In the light of these circumstances we shall proceed to assess the ocular evidence in the first place hand then the recovery of weapons. Complainant Ghous Bux is son of sister of the deceased. He has gone by chance to Ratodero to collect from tailor his clothes and had returned to the deceased. He did not take the clothes as the tailor master was not available. The testimony of this witness on the whole does not inspire confidence though in cross‑examination he has refuted the suggestion that he was not present at the time of incident. Besides this he has admitted series of past litigation between accused Khadirn Hussain, Kalandar Bux and Shah Bux. The evidence of this witness therefore, must be taken with great care and caution and the reliance could not be placed on his testimony.

15. Similarly the incidental approach of Karim Dino or Mohammad Ashraf on the spot is very curious. They witnessed the firing by the accused from a distance of 40 paces and while sitting in tonga also saw that the accused had dragged the dead body. At any rate these witnesses are chance witnesses. In one way or the other they are connected with the complainant party. Therefore, they are unworthy of reliance. One aspect of the case is that the respondents are alleged to have dragged the dead body up to the burrow pits so that the dead body is not visible. What was the purpose of dragging dead body by the accused persons in presence of the witnesses because it would not serve the purpose of hiding the corpse. This aspect of the case suggests that at the time of incident nobody was present and the accused have leisurely done the job. The ocular testimony is correctly rejected by the learned trial Court. .

16. Next we would advert to the corroboratory piece of evidence namely the evidence of the mashir and the investigating officer. Mashir Mohammad Kasim at Exh. 17 has averred that he accompanied the investigating officer who called Kalandarbux at the door of his house who readily came out with a gun and bandolier containing two live cartridges. Police secured and sealed the gun after testing the same that it was in working order. Next they went to accused Shah Bux who also produced the gun from his house under a cot and the relevant mashirnama was prepared. The gun was sealed. Thereafter the police went to accused Khadim Hussain who voluntarily produced the gun from his house lying under the cot and the same was secured under mashirnama. Houses of the three accused were in the same village and were adjoining each other.

17. The arrest of the accused during the night, which succeeded the incident, is a fact, which is to be deeply probed. The assailants after murdering, should be comfortably present in their houses, is unnatural. They all produced licensed guns. The police arrested them because their names were mentioned in F. I. R. The barrels of the guns were not seen if the same smelled gun powder, indicating Fresh explosions. All this exercises of the police, spell out more of innocence of the respondents, rather than guilt.

18. The securing of the crime weapons from the accused/respondents is to be read with the mashirnama of vardat which was prepared on the next day morning in presence of hundreds of people and three empty cartridges were found from the vardat. It is very strange that S. H. O. Darya Khan reached the vardat immediately after recording the F. I. R. but did not find the crime empties and the same were recovered next morning. Many constables were available at the vardat and they did not secure any crime empties from the vardat. This aspect of finding the crime empties from the vardat in the morning is highly doubtful. It is more doubtful because the S. H. O. being the investigating officer was duty bound to collect all the possible evidence available at vardat at first instance when he visited the vardat. The mashir has stated that the guns were tested to see that they were in working order. It is not known how they tested the guns was it by firing from the guns or by pulling the trigger of unloaded guns? The learned counsel has criticised the evidence of mashir and investigating officer on this account. There is any amount of force in his arguments. It is against the nature and behaviour of a criminal and the qualms of conscience would not allow him to be present in the house on the night of incident, however, the assailant be braver and dare devil. They have readily surrendered the guns, may be, as argued by the learned counsel under the pressure of police. We are in agreement with the arguments of the learned counsel. The implication of the accused in the crime is doubtful. The positive opinion of the ballistic expert, therefore, will not improve the prosecution case. We are referred to number of authorities, mainly P L D 1979 S C 943 and P L D 1980 S C 317.

19. The present appeal is filed against the acquittal of the respondents and the principles which justify the interference by the superior Courts with orders of acquittal have been laid down by the Supreme Court as enunciated in the case of Fateh Muhammad v. Bago and another (P L D 1960 S C 286) and Sirajuddin v. Kala (P L D 1964 S C 26). These principles are reiterated in P L D 1964 (W. P.) Kar, 356 wherein it is observed as follows; These principles are that unless it can be demonstrated with certainty that none of the grounds on which the trial has purported to acquit is at all supportable, the superior Court will be reluctant to interfere even though upon the evidence on record and the facts and the circumstances of the case, this Court might well have come to a different conclusion if it was trying the case.

20. In view of the decisions of the superior Courts and the circumstances of the present case, we are not inclined to interfered with the judgment of the trial Court. The appeal has no substance and the same is dismissed. Appeal dismissed.