P L D 1965 (W (PLP)

S. A. MAHMOOD, J.

This appeal is by Araz Muhammad (30) and Ali Nawaz (42). The former has been sentenced to death under section 302, P. P. C., and the latter to transportation for life under sections 302/34, P. P. C. They have been sentenced, under sections 324/34, P. P. C., to imprisonment till the rising of Court and a fine of Rs. 200 (in default, rigorous imprisonment for six months) and under section 323/34, P. P. C. to imprisonment till the rising of Court and a fine of Rs. 100 (in default, three months' rigorous imprisonment). The case of Araz Muhammad is also before us for confirmation of the death sentence under section 374 of the Code of Criminal Procedure. The appeal and the reference will be disposed of by this judgment. Abdul Ghafoor and Shaman accused were also tried along with the appellants. While they were acquitted of the charge under section 302/34, P. P. C., they were convicted under sections 323 and 324, read with section 34, P. P. C. respectively. Their sentences were the same. They have not appealed.

2. The parties are Mehr by caste and reside in village Kassim Taluka, Sukkur. Muhammad Fazil (P. W. 7) was allotted some land in 1959, measuring about 36 Jaribs, in village Kassim, in lieu of the land left by him in India. He gave it on lease to Haji Suleman and Ali Nawaz appellants on yearly basis. It remained with them for about 3 years. The land was situate near the well of Mooso, and was cultivated by Wali Muhammad. Haji Suleman died in 1962. As the lease expired in May 1962, Muhammad Fazil P. W. gave the land on lease to Haji Jan Muhammad and Bakshio. Wali Muhammad made an application to the Mukhtiarkar that he should not be ejected from the land. Haji Jan Muhammad gave the land for cultivation to Hazari (P. W. 4). He and Qadir Bakhsh deceased ploughed about five Jaribs of the land. When they did so, Ali Nawaz appellant went and lodged a report at Police Station Chak, and Haji Jan Muhammad brought the police. After about 2 or 3 days of this incident, i.e., the 1st of June 1962, at past tripahri time, Hazari along with Miran (P. W. 5) and Muhammad Hassan (P. W. 6) went to Mooso's well for having a bath. They found that the well was not working. While they were still there, Araz Muhammad and Ali Nawaz, armed with guns, and Abdul Ghafoor and Shaman, armed with hatchets, came there from the side of the village. Ali Nawaz and Abdul Ghafoor abused Hazari P. W. and asked him why he had ploughed the land which was in the cultivating possession of their cousin, Wali Muhammad. He replied that he had obtained the land from Haji Jan Muhammad and would continue ploughing it. On this reply, they abused him and then assaulted him. Abdul Ghafoor gave him hatchet blows on the neck, while Shaman struck him from the blunt side of the hatchet. Ali Nawaz appellant instigated them by abusing Hazari when he was running away. Hassan and Miran P. Ws. intervened. After receiving the injuries Hazari tried to run away, and crossed the canal. He had hardly traversed a distance of 5 or 8 paces towards the village side, when he became unconscious, because of the injuries and regained consciousness in the dispensary. This incident was witnessed, besides Miran and Muhammad Hassan, by Bakhshio (P. W. 9) and Husain Bakhsh (P. W. 10).

3. After Hazari was injured, the appellants left him and went towards the village. Qadir Bakhsh deceased and Mir Muhammad (P. W. 8) were in the village loading a bullock‑cart with manure. They heard cries from the side of the well of Mooso and ran in that direction. Qadir Bakhsh deceased was Musahib of Mir Muhammad P. W. Miran (P. W. 5) met them on the way and told them that Hazari P. W. had been given injuries by the four culprits, and was lying injured at the spot and that he was going to inform his father about it. While he went away towards the village, Mir Muhammad and Qadir Bakhsh went towards the spot. When they came on the kacha side of the metalled road, they saw the two accused, Abdul Ghafoor and Shaman, coming towards the village. Shaman and Abdul Ghafoor were armed with hatchets while Araz Muhammad and Ali Nawaz appellants carried guns. They were followed by Bakhshio, Haji and Hussain Bakhsh. When Qadir Bakhsh deceased reached near Ali Nawaz, he asked him that when he was a naik mard of the locality, why was he committing such offences, on which Ali Nawaz appellant abused him, saying that he was a supporter of Hazari P. W. In return, Qadir Bakhsh also abused him and told him to behave himself. On this, Ali Nawaz appellant instigated Araz Muhammad appellant to fire. The latter fired his gun at the deceased, who was hit and fell down. The accused also tried to assault Mir Muhammad P. W., but Bakhshio P. W. and others intervened, and he was saved. This incident was witnessed by Mir Muhammad (P. W. 8), Bakhshio (P. W. 9). On their cries, Jummo and Imam Bakhsh P. W. also came to the spot. By then, the assailants had left, and the witnesses narrated the whole incident to them. They had also seen the assailants going away. As Ha7,ari P. W. was lying unconscious, Mir Muhammad P. W. went to Police Station Chak, which is at a distance of six miles from the spot, and dictated the report Exh. P. 23 at 8‑15 p.m. which was recorded by Ghulam Qadir, S. I. P. (P. W. 13). The latter went to the spot and found the deceased lying on the kacha road, about five paces from the pucca road. There was blood under the body, which he took into possession. Angosha of the deceased was bloodstained and was taken into possession. He also inspected the spot in the presence of mashirs, Shall Muhammad and Bakhshio. He also saw Hazari P. W. lying injured at a distance of about 35 paces near the canal to the village side, and prepared his injury statement Exh.

30. He was unconscious and was incapable of making a statement. Having prepared the inquest report, the Sub‑Inspector sent the dead body of Qadir Bakhsh deceased to the Civil Hospital, Sukkur, for post‑mortem examination. The accused were not available in the village on that day. On the morning of 22nd June 1962, the S. 1. arrested Ali Nawaz appellant and he produced his licensed double‑barrelled gun and one cartridge. On search of the house of Abdul Ghafoor accused, he recovered a hatchet, which was not blood‑stained. On search of the house of Araz Muhammad appellant, he recovered his licensed double barrelled gun. The gun was smelling of powder. He arrested Araz Muhammad at 10‑30 a.m. Abdul Ghafoor and Shaman accused, who were in the Civil Hospital at Sukkur, having been sent by Bagerji Police Station, were arrested at I p.m. It may be mentioned that Abdul Ghafoor accused had gone to Bagerji Police Station and lodged report Exh. 9 at 8‑30 p.m. on the 21st of June 1962.

4. Dr. M. A. Mueed P. W. performed the post‑mortem examination on the body of Qadir Bakhsh at 9 a.m. on the 22nd of July 1962, and found the following injuries on the body:‑ (1) A lacerated wound, 2 " x 2", on the right side of the neck, with charred margins and gun‑powder smell. This was the wound of entry. (2) A lacerated wound, 3" x 3", on the left side of the neck. This was the wound of exit. (3) An abrasion, 3'' x 1 ", on the anterior part of the right shoulder. Injury No. 1 appeared to be caused by a firearm like a shot gun, and injury No. 2 by some blunt hard substance, as by a fall. The shot appeared to have been fired from a distance within six feet. The injuries were ante mortem and caused about 12 to 18 hours before the post‑mortem examination. There was multiple fracture of the fifth and sixth cervical vertebrae. The spinal cord was lacerated at the level of the fifth and sixth vertebrae. Trachea and oesophagus were lacerated at the same level. Large vessels of neck were lacerated on both the sides. Death was due to shock and haemorrhage and injuries to the vertebral column as a result of injury No. 1, which was individually sufficient in the ordinary course of nature to cause death, which must have been instantaneous.

5. The doctor also examined Abdul Ghafoor accused on the same day, and found the following injuries on his person:‑-- (1) A lacerated wound, 1 " x ", scalp deep, on the forehead. (2) An incised wound, 2" x ", skin deep, on the left hand, between the thumb and the index finger. (3) A contusion, 2 " x ", on the left upper arm. (4) A contusion, 3" x 1", on the left scapular region. (5) A contusion, 4" x 2", on the lateral aspect of the right upper arm. Injury No. 2 appeared to have been caused with a sharp cutting weapon, such, as a knife, and the rest with some blunt hard substance, such as a lathi. The injuries were simple and caused within about 12 hours.

6. The doctor also examined Shaman accused on the same day and found the following injuries on his person:‑ (1) A lacerated wound, 1" x " x skin deep, on the forehead, 1" lateral to left. (2) A contusion, 3" x ", on the left shoulder. Both the injuries were caused with blunt substance within 12 hours and were simple in nature.

7. He also examined Kazim son of Shaman on the same day and found the following injuries on his person: (1) A contused wound, " x " x skin deep, on the middle of the forehead. (2) A lacerated. wound, 2" x " X skin deep, on the back of the index finger of the left hand. Both the injuries appeared to have been caused with blunt substance, such as a lathi. The injuries were simple and caused within about 12 hours.

8. Dr. Muhammad Iqbal (P. W. 7) examined Hazari P. W. on the 22nd of June 1962, at 4 a.m. and found the following injuries on his person: (1) An incised wound, 1 x 1/3" x '', deep, on the left side of the face, in front of the ear. (2) A swelling on the left middle finger. (3) A contusion, 3" x ", on the middle of the back of the left forearm. (4) A contusion, 3" x ", on the outer side of the upper arm. Injury No. 1 was caused with a sharp‑edged weapon, the remaining having been caused with a blunt substance. The injuries were simple and caused within 24 hours.

9. The appellants denied the prosecution allegations and pleaded that they were falsely implicated. Ali Nawaz appellant stated that the case against him was due to enmity as his cousin, Abdul Latif, had brought a case of assault against the complainant, who were related to one another. Araz Muhammad appellant pleaded the same, saying that his sister's husband, Abdul Ghafoor, filed a case of assault against them. Though Ali Nawaz appellant admitted before the committing Magistrate that survey No. 453 cultivated by Wali Muhammad was subsequently given to Hazari and that the land was on lease with Wadero Suleman and the appellant used to look after it and that subsequently it was leased to Haji Jan Muhammad and Bakhshio P. W., he denied at the trial that it was given on lease to Haji Jan Muhammad by Fazal Muhammad and that he was a partner in the land with Haji Suleman. No evidence was produced in defence.

10. There is ample evidence on the record that the land which Muhammad Fazil had given on lease to Haji Suleman and Ali Nawaz and had remained with them for three years, was given on lease by him in May 1962, to Haji Jan Muhammad and Bakhshio. The land was originally cultivated by Wali Muhammad, cousin of Ali Nawaz, and Suleman. When the land was given on lease to Haji Jan Muhammad and Bakhshio, Wali Muhammad made an application to the Mukhtiarkar that he should be saved from ejectment. The land was given to Hazari, six days before the incident, for cultivation, and when it was ploughed by him two or three days before the occurrence, Ali Nawaz appellant lodged a report at Chak Police Station. There was thus a dispute between the parties about the lease of the land. This, according to the prosecution story, furnishes the motive for the occurrence under consideration.

11. The prosecution evidence relates to two incidents. The first incident concerns the attack on Hazari P. W., Which took place at point No. B in plan Exh.

6. The place where the deceased was fired at is point No. D. While Hazati p. W. was injured at a distance of 200 feet from the well of Moaso, shown as point No. A, the deceased was killed at a distance of 537 feet from point No. A.

12. According to the prosecution story, Hazari, Miran and Muhammad Hassan P. Ws. had gone to the well of Mooso to have a bath, but as the well was not working, they had not had a bath and were there when the four assailants had turned up and had attacked Hazari P. W. There are a number of weaknesses in the prosecution story relating to this incident. For some reason, the witnesses have deposed in Court that the well was not working and that they had not had a bath, but before the police they had stated that the well was working and they had had a bath when the incident happened. In the first information report only Abdul Ghafoor is mentioned as having given a hatchet injury to Hazari P. W. The report was lodged by one Mir Muhammad, to whom Miran (P. W. 5) an eye‑witness of the occurrence, had given the details of the first incident. In Court, however, it was stated that besides Abdul Ghafoor, Shaman had also given injuries to him with the blunt side of the hatchet. It was also added by Hazari that Ai Nawaz appellant had incited them by abusing him while he was running away. Bakhshio P. W. deposed that besides them Ali Ntwaz and Araz Muhammad also assaulted Hazari. None of the witnesses of the incident have explained how Abdul Ghafoor, Shaman and Kazim received nine injuries. They went to the Polite Station Bagerji, where they were found to have these injuries. Their injuries were also medically examined. Hazari P. W. admitted in his evidence that the accused may have received injuries in the quarrel, but stated at the same time that none of the witnesses was armed with any weapon. The witnesses have not only failed to explain how Abdul Ghafoor and Shaman received injuries, but it is obvious that they have omitted to mention Kazim, son of Shaman, who was also concerned in the incident and was injured at their hands. The place where Hazari P. W. was injured, is also not the well of Mooso, as the prosecution would have us believe, but it appears that he had crossed the canal when he was injured. It is surprising that he was allowed to go some distance when the injuries were caused to him. Besides, if Araz Muhammad and Ali Nawaz appellants had accompanied Abdul Ghafoor and Shaman accused to attack Hazari P. W. because of the dispute about the lease, they should have joined in the attack, but it is highly significant that they did not move even a little finger to join in the assault. The story. of Hazari P. W. that Ali Nawaz appellant instigated his companions by abusing him, is a fabrication. The blunt injuries received by Hazari were not even mentioned in the first information report by Mir Muhammad (P. W. 8). (It is surprising that though the accused, four in number, had come to assault Hazari and had him at their mercy, only one incised injury and, at best, three blunt injuries, were caused to him, while, on the other hand, Abdul Ghafoor, Shaman and Kazim received nine injuries. It appears to us, therefore, that the prosecution witnesses have lied on the material aspects of the prosecution story. We have not been told how the incident commenced, how it actually happened, and who were, in fact, concerned in it. Even if the prosecution story is accepted as it is, Araz Muhammad and Ali Nawaz appellants are in no way responsible for the act of Abdul Ghafoor, or even of Shaman, who gave injuries to Hazari. Maybe that Abdul Ghafoor, Shaman and Kazim had a fight with Hazari P. W. and others, but Araz Muhammad and Ali Nawaz appellants could not have been there, for nothing could have prevented them from using their guns and settling the issue once for all. The fact that Araz Muhammad and Ali Nawaz appellants did not take any part in the incident shows that either they were not there, or they were not concerned in the fight which occurred between Abdul Ghafoor and Shaman accused on the one hand and Hazari on the other. As Shaman was not named as an assailant of Hazari P. W. in the F. I. R., it is not even possible to hold that Shaman is proved to have joined in the attack on him.

13. This takes us to the consideration of the second incident, in which Araz Muhammad appellant is alleged to have fired at Qadir Bakhsh deceased on the instigation of Ali Nawaz appellant. The witnesses of this incident are Mir Muhammad (P. W. 8) Bakhshio (P. W. 9) and Husain Bakhsh (P. W. 10). The last two witnesses are also the witnesses of the first incident. Their evidence has been seriously shaken by the deliberate falsehood and material omissions by them in their evidence relating to the first incident. We are satisfied that they have not stated the truth and that their statements cannot be believed without corroboration. We are not even satisfied that Husain Bakhsh P. W. was present at the time of the incident. He is supposed to have come to the house of Bakhshio to take dues for the milk which he used to supply to him. In Court he stated that his dues were of about 10 days and he had gone to Bakhshio for his dues after 10 days, but in the committing Court, he had stated that it was not the tenth day, and though he used to go after every ten days to take his dues, he went to him earlier this time. He is a chance witness and his presence at the spot is highly doubtful. Bakhshio P. W. is an interested witness. Hazari P. W. is his sister‑in‑law's son. Qader Baksh deceased had brought a case against him, but Hazari P. W. had brought about a compromise between them. Ali Nawaz appellant and Abdul Ghafoor accused were witnesses in that case against him. He had, therefore, enmity against them. These two witnesses deposed that they had followed the accused as they were going towards the village. It seems incomprehensible that they should leave Hazari P. W. lying unconscious at the spot and follow the accused, especially when two of them were armed with guns and two with hatchets. The story of‑ following the assailants is, in our view, completely made up one in order to become witnesses of the second incident. We are, therefore, satisfied that the evidence of Bakhshio and Husain Bakhsh P. Ws. is not worthy of credence and we rule it out of consideration.

14. We are now left with the evidence of Mir Muhammad (P. W. 8). The deceased was his sister's husband. He was in his village loading a bullock cart with manure when he was attracted by the cries from the side of the well of Mooso, and he went in that direction. We are not satisfied that he saw the occurrence, because he deposes that Araz Muhammad appellant fired at the deceased from a distance of 4 or 5 paces, i.e. 10 to 12 feet. This is wholly inconsistent with the medical evidence, which shows that the deceased must have been fired at from a gun from a very close range; so close, that the pellets entered in a mass, causing a wound of entry, 2 " x 2", which no dispersion of the pellets. The muzzle of the gun must have been within three feet of the neck of the deceased to make the pellets enter together, without dispersion. The margins of the wound were also charred.

15. The prosecution story is also artificial and unbelievable. The story is that the deceased told Ali Nawaz that when he was a naik mard of the locality, why was he committing such offences, on which Ali Nawaz abused him and the deceased returned the abuse. Then Ali Nawaz appellant instigated Araz Muhammad appellant to fire, and he complied. Ali Nawaz appellant himself was armed with a gun, and if he felt so offended at the abuse given by the deceased, he should have fired at the deceased himself instead of asking his companion Araz Muhammad to fire. Araz Muhammad's sister is married to Abdul Ghafoor accused, but he had no motive of his own to kill the deceased. If there was anyone who had to be done away with, it was Hazari P. W. and yet neither he nor Ali Nawaz fired at him during the first incident. It seems to us, therefore, that the firing on the deceased was not noticed by any one and later the story was made up after deliberations. The story is unnatural and difficult to believe. There is no corroborative evidence against any one of the appellants. It is true that Ghulam Qadir has stated that he took into possession the licensed gun of Araz Muhammad and it smelt of powder, but this fact is belied by the mashirnama Exh. 32, where no such thing is mentioned.

16. As we have disbelieved the evidence of Mir Muhammad, Bakhshio and Husain Baksh P. Ws. it is not necessary to notice the testimony of Miran (P. W. 5), Muhammad Hassan (P. W. 6) and Imam Bakhsh (P. W. 11), who deposed that they came to the spot shortly after and were informed that Araz Muhammad had fired at the deceased at the instigation of Ali Nawaz appellant. This evidence is of no value by itself.

17. It is impossible to believe that Hazari P. W. became unconscious after the receipt of the injuries. Dr. Muhammad Iqbal has deposed that he should not have become unconscious, and we do not think that any of the injuries was so serious as to bring about unconsciousness. Hazari P. W. remained near the well of Mooso, while Bakhshio and Husain Bakhsh P. W. followed the culprits. The story of their following the culprits is intrinsically improbable.

18. We are conscious that Araz Muhammad is stated to have fired at the deceased, and if the incident had been witnessed by the eye‑witnesses, there was little chance of his substitution for the actual culprits, but we are not satisfied that Mir Muhammad, Bakhshio and Husain Baksh saw the incident. We cannot rely on any part of the prosecution story, which is full of imperfections. We cannot, with any degree of reasonable certainty, hold that it was Araz Muhammad who fired at the deceased. We cannot believe that Ali Nawaz appellant instigated him. It is enough in this connection to state that Husain Bakhsh did not say before the police that Ali Nawaz appellant instigated his companion at which Araz Muhammad fired. In our view, therefore, Araz Muhammad and Ali Nawaz appellants are both entitled to the benefit of the doubt on the charge of murder.

19. With regard to the offences under sections 324 and 323, read with section 34, P. P. C. the prosecution story cannot itself be believed, and, in any case, the appellants are not proved to have acted in concert with Abdul Ghafoor or Shaman, so as to be vicariously responsible for their act. The appellants are, therefore, given the benefit of doubt and are acquitted. K.B.A. Appeal accepted.