1994 P Cr (PLP)

The report of the complainant was recorded by A.S.I. Raja Abdul Ghani Exh.ll-A, who after recording the F.I.R. proceeded to the place of Wardat where he found the two dead bodies of Muhammad Qasim and Muhammad Siddique. He saw there was blood lying at the Wardat and 5 empty shells of cartridges and two bullets, which were also lying at the spot were secured and sealed by him separately under memo. Exh.14-A. He also held inquest over the dead body of Muhammad Siddique and Muhammad Qasim as Exhs.14-B and 14-C respectively. He then sent the dead bodies to Civil Hospital, Larkana for post-mortem examination through Constable Muhammad Ramzan. He examined P.Ws. Hidayatullah and Qamardin. On 22-5-1986 he -arrested accused Imamdin, Allah Dino and Karim Bux under memo. Exh.14-D. Accused Allah Dino produced a rifle from his house for which he had no licence and the same was secured under memo. Exh.14-G. Accused Imamdin produced a gun which was secured under memo. Exh.14-H. Likewise accused Karim also produced rifle which was secured under memo. Exh.14-F. He then brought the accused and the case property to the police station. All the Mashirnamas were prepared in presence of Mashirs Manzoor AN and Sikandar. On 29-5-1986 he arrested accused Hadi Bux when he surrendered at the police station alongwith his gun which was secured under memo. Exh.14-E. After getting recorded the 164, Cr.P.C. statements of witnesses, he handed over the case papers to S.H.O. on 31-5-1986 for further investigation. The S.H.O. challaned the accused. The charge Exh.2 was framed against the appellants as well as co -accused Karim Bux and Allah Dino for having committed offences under section 302/34, P.P.C. to which they did not plead guilty and claimed to be tried. It may be mentioned that during the course of trial, bail was granted to accused Karim Bux and Allah Dino by this Court in Criminal Bail Application No.275 of 1990 and after furnishing surety, they were released. At the fag-end of the trial, accused Karim Bux and Allah Dino absconded, as such, after they were declared proclaimed offenders, the case of the present appellants Imamdin and Hadi Bux was bifurcated. To establish its case the prosecution examined P.W.1 Tapedar Shapar Khan; P.W.2 complainant Amir Ali and P.W3 Hidayatullah so also P.W.4 Qamardin are the three eye-witnesses. P.W.5 Mashir Manzoor Ali, P.W.6 Medical Officer, Dr. Agha Iqbal and P.W.7 Investigating Officer, A.S.I. Raja Abdul Ghani. After examining the aforesaid witnesses, the prosecution side was closed and thereafter the statements of the appellants were recorded under section 342, Cr.P.C. Appellant Allah Dino in his statement Exh.22 denied the prosecution allegation. He also denied having produced any rifle before the police and claimed that the witnesses have deposed against him due to enmity. He further stated that appellant Karim Bux is his brother and his further statement was the same as that of his brother. However, he did not wish to be examined on oath nor wanted to examine any defence witness. Appellant Karim Bux in his statement Exh.26 also denied the prosecution allegation. He also denied about the recovery of the rifle but he has admitted that rifle bearing No.5687 was his licensed rifle. He also claimed that the witnesses have deposed against him due to enmity. However, he did not wish to be examined on oath, but he wanted to examine Resident Magistrate, Kumbber, Mr. Allah Dino Solangi as his defence witness. He, however, stated that he was innocent and the case against him is false. He further stated that deceased Muhammad Siddique was on inimical terms with other persons also and that he was also involved in a murder case of Police Station Damra in F.I.R. Crime No.26/1980 which he has produced as.Exh.21. The statement of appellant Imamdin is Exh.23. He has denied the prosecution allegation and claimed that the P.Ws. have deposed against him duty to enmity over land pertaining to Survey No.739. He did not want to be examined on oath nor wanted to examine any defence witness. Statement of appellant Hadi Bux is Exh.24 and he has also given the same statement as P.W. Imamdin. Subsequently on behalf of the appellants, an application was filed to examine defence witness Abdul Sattar Khan. Accordingly, the said witness has been examined as Exh.28. He has stated that he was Resident Magistrate, Kumbher at Larkana and on 10-5-1988 one Qamardin son of Muhammad Khan appeared before him and also produced an affidavit for attestation. He was shown Exh.13-E which was signed by him as well as by Qamardin. He also produced photostat copy of the National Identity Card of Qamardin as Exh.13-B. He stated that he had also obtained another signature of Qamardin who was identified by an Advocate. Finally, vide Exh.29 the appellants side was closed. It may be mentioned that the two co-accused namely Karim Bux and Allah Dino absconded after the defence witnesses were examined. As such vide Exh.30 process-server H.C. Gul Hasan was examined and thereafter the trial Court passed an order under section 512, Cr.P.C. At the conclusion of the trial both the appellants were convicted and sentenced as already mentioned hereinabove. I have heard Mr. A.Q. Halepota, Advocate for appellants and Mr. Vakeel Ahmed Qureshi, Advocate for A.-G. for State. It may be mentioned that Mr. Abdul Razzaq D. Soomro, Advocate for the complainant chose to remain absent without any intimation, though notice was issued to him well in time. I may also observe that this appeal was fixed for regular hearing on 7-11-1993 on which date the learned counsel for the complainant had appeared and at his request the case was adjourned to 21-1I-1993. On the said date, that is 21-11-1993 Mr. Soomro, learned counsel for the complainant had submitted an application for adjournment in the office one day earlier, in which he took the stand that the date of hearing that is 21-11-1993 was not fixed in his presence. The stand thus taken is regretted, however, in the interest of justice, fresh notice was ordered to be issued to Mr. Soomro for the next date of hearing that is 5-12-1993 with direction that no further adjournment will be granted. On 5-12-1993 the learned counsel for the complainant again chose to remain absent without any intimation, though the notice was issued to him well in advance through registered post. In these circumstances, I have proceeded with this matter to dispose of this appeal. Learned counsel for the appellants submitted that the motive as alleged by the prosecution appears to be far-fetched. The complainant had stated that as he has taken the land pertaining to Survey No.739 on lease, therefore, appellant Imamdin was annoyed on account of which this incident has taken place. Learned counsel submits that if the intention of the appellants was to take the law in their own hands in that event appellant Imamdin would not have adopted a legal course by filing an appeal against the order of grant of lease to the complainant. Even if it is believed that the land in question was the bone of contention, in that event, the enmity of the appellant would be with the complainant Amir Ali and not with his cousins Muhammad Qasim and Muhammad Siddique. He further submitted if this was the motive, how could the accused spare the complainant Amir Ali. As such, this could not be the cause of this incident as alleged. He has further submitted that surrounding circumstances indicate that the complainant was never present at the time of the incident. In this regard he has referred to the F.I.R. and the evidence of the witnesses to show that they had prepared the plough and that there were bullocks, but neither the plough nor bullocks nor the ploughed land was shown by the complainant to the Investigating Officer as no such factors are mentioned in the Mashirnama of Wardat. In respect of P.W. Qamardin he submits that his evidence also suffers from the same infirmity. In respect of P.W. Hidayatullah he submits that he has deliberately tried to suppress his relationship with the complainant in order to give an impression that he was an independent witness, but it is proved through the evidence of P.W. Qamardin that one Mst. Irshad is the sister of this witness and she is wife of the complainant. In this regard he has relied on a reported case 1979 S C M R 557 and states that the Supreme Court has observed that if a witness suppresses relationship, in that event, his evidence should be discarded. The relevant portion appears at page

563. Learned counsel has also relied on another case 1982 S.C M R 41 to show that where the witnesses were alleged to be having sickles which were not shown to the police in order to establish the fact that the witnesses were present at the spot, the evidence of such witnesses were ruled out of consideration. On the other hand Mr. Vakeel Ahmed Qureshi learned counsel for the State did not support the impugned judgment. He submitted that there was enmity between the parties, the witnesses were related and their evidence cannot be relied upon without independent corroboration. He has referred to the evidence of recovery of guns and the ballistic report Exh.18 which though is positive, but the same cannot be used against the present appellants as none of them are alleged to have fired a single shot. After going through the evidence available on record, it appears that the learned trial Judge recorded the conviction of the appellants on the strength of ocular testimony of P.Ws. Amir Ali, Hidayatullah and Qamardin coupled with circumstantial evidence of recovery of empty cartridges from the Wardat and the gun from the possession of the accused. In addition, he has also relied on the ballistic expert's report Exh.18. It may be mentioned that so far as the present appellants are concerned, they are shown to be armed with guns, but it is not the prosecution case that any fire-arm injury was caused by either of the appellant. The factum of causing fire-arm injuries on the two deceased is specifically attributed to the two absconding co-accused Allah Dino and Karim Bux. So far as appellant Hadi Bux is concerned he is said to have instigated the absconding accused. As such, any weapon recovered from the two appellants will be of no consequence. Before considering the worth of the ocular account, it will be worthwhile to mention here that the three eye witnesses namely Amir Ali, Qamardin and Hidayatullah are not only related inter se but they are also related to the two deceased Muhammad Qasim and Muhammad Siddique. In this regard complainant Amir Ali has admitted in his cross-examination that the daughters of the sister of P.W. Qamardin were given in marriage to both the deceased. Both the deceased were cousins of the complainant. As such, the complainant and P.W. Qanardin are related inter se and also related to the deceased. It may be mentioned that the complainant Amir Ali has stated in his cross-examination that P.W. Hidayatullah and P.W. Qamardin are only his caste-fellows and not his relatives. As compared to this, P.W. Hidayatullah has denied a suggestion that the complainant was his sister's husband, in fact he went to the extent of saying that he had no sister and neither did he know any body by the name of Mst. Irshad. He also denied that Mst. Irshad is his sister and that she is wife of the complainant. The cat was out of the bag when P.W. Qamardin was examined who admitted in his cross -examination as under:-- "Mst Irshad is wife of complainant Amir Ali. She is sister of P.W. Hidayatullah." This admission by P.W. Qamardin clearly established the fact that P.W. Hidayatullah has tried to suppress his relationship with the complainant. Similarly, P.W. Qamardin in his cross-examination has also suppressed his relationship with the deceased by saying I have no sister and it is incorrect that my sister's daughters have been given in marriage to the deceased Muhammad Siddique and Muhammad Qasim. As already mentioned the complainant admitted this fact by stating that the daughters of P.W. Qamardin's sister. were married to the deceased. This also establishes the fact that even P.W. Qamardin has tried to suppress his relationship. The conclusion which will be drawn is that the witnesses P.Ws. Hidayatullah and Qamardin have deliberately suppressed their relationship in order to give an impression that they are independent witnesses not related to the deceased or the complainant. This being the position the learned counsel has rightly relied on the case of Allah Yar v. The State reported in 1979 S C M R

557. In this reported case the position was there were five eye-witnesses mentioned in the F.I.R. but three of them namely P.Ws. Allah Yar, Karam Ali and Outab were examined. All the P.Ws. were related and there was hostility between the two parties, but P.W. Allah Yar denied his relationship with P.W. Qutub and it was observed that this brazen denial of relationship was sufficient to demonstrate that the witness was quite capable of telling lies. In respect of the motive it was mentioned that it was against P.W: Allah Yar and if he was present at the spot with the deceased, he would have been the first target of the accused as the motive was against him." In the present case also the position is the same. The witness, P.W. Qamardin and P.W. Hidayatullah, since they have suppressed their relationship, their evidence is to be discarded. So far as the complainant Amir Ali is concerned, it appears that he was not at all present at the time of incident. This conclusion is being drawn as his evidence does not fit in with the surrounding circumstances. According to the complainant all the 4 accused came to his land and after verbal altercation, accused Karim fired at Muhammad Siddique who fell down. Thereafter Muhammad Qasim, other deceased tried to run but accused Allah Dino fired at him who also fell down. In respect of witnesses Qamardin and Hidayatullah the complainant does not know what work they were doing in their fields. In respect of the two deceased, in his cross-examination he stated that both of them were fired at when they were in the same land. But when the Tapedar prepared a sketch of the Wardat, which was pointed out by the complainant himself, the dead body of deceased Muhammad Siddique is shown to have fallen in Survey No.752 while the dead body of Muhammad Oasim was shown to have fallen in Survey No.739. Apart from this, accused Karim Bux was not shown to be standing in the land of the complainant. He was shown to be standing separately on a Katcha road from where he fired at deceased Muhammad Siddique which was in Survey No.752. The complainant claimed that he had gone to the field alongwith bullocks and a plough. He also claimed to have ploughed the land in 18/20 lines (furrz)ws) but admittedly neither the bullocks were shown to the police nor the furrowed land was seen by the police, as no such factor is mentioned in the memo. of Wardat. Even the plough is not shown to be available at the spot. All these circumstances go to show that the version given by the complainant does not fit in with the surrounding circumstances and other established facts. In the circumstances, it is difficult to believe that the complainant was at all present at the time of the incident. So far as the other two eye-witnesses are concerned their evidence also suffers from the same infirmity. The complainant stated in his evidence that P.Ws. Qamardin and Hidayatullah were standing in their fields but in the F.I.R. he did not state this fact and this has been proved through the I.O. who has stated that the complainant did not state this fact in the F.I.R. In his evidence the complainant has shown their presence in his field but neither of the eye-witnesses state that they were standing in the field of the complainant. The-two witnesses P.W. Qamardin and P.W, Hidayatullah deposed in Court that they were standing in their own field but they were confronted with their previous statements in which they did not state so as admitted by the I.O. It is an admitted position that in the Mashirnama of Wardat Exh.14-A there is no mention that the police had seen the ploughed land. It may also be noted that one of the deceased, namely Muhammad Qasim; fell in Survey No.739 which is the land of the complainant and if the land had been ploughed, in that event, the Police Officer could not have missed the ploughed land and would have certainly mentioned it in the Mashirnama of Wardw. Since this factor is missing in the memo. of Wardat, obviously there was no ploughed land. In respect of the plough, P.W. Hidayatullah claims in his cross-examination that the bullocks and plough were taken away by the villagers and that the police had also seen the ploughed land. He also admits that the surrounding land at the place of Wardat are being cultivated by villagers and by people of different castes. P.W. Hidayatullah does not even know the survey number of the land which he was cultivating. He also admits there was no cultivation in his land. He states that he and P.W. Qamardin were working with spades in their land. He does not know what happened to those spades. Likewise, P.W. Qamardin admits certain facts which contradicts P.W. Hidayatullah. P.W. Hidayatullah says that when he came to the land P.W. Qamardin was already there. But Qamardin says that when he came to the land P.W. Hidayatullah had also came with him. He admits in his 164, Cr.P.C. statement that he and Hidayatullah were standing on Katcha road and this road is situated in their land but the complainant has shown their presence in his land. Where the complainant and P.W. Hidayatullah state that there was a pair of bullocks of the complainant, and, according to Hidayatullah the villagers have taken away the bullocks and plough but this witness Qamardin says that the bullocks ran away alongwith plough on hearing the gunshot reports. This witness also does not know that deceased Muhammad Qasim was lying in Survey No.739 while deceased Muhammad Siddique was lying in Survey No.752. He states that both the deceased were lying in the same survey, number. All these circumstances IC clearly suggest that the incident was either not seen by these witnesses or that they were not present at the time of incident. In these circumstances, it is I difficult to place implicit reliance on the evidence of these witnesses. Apart from the above discussion, there is yet another circumstance which also needs to be mentioned. According to the police, five empty cartridges were also recovered from the place of Wardat. If this is correct, the question arises who fired these cartridges. Admittedly both the appellants though armed with guns, but they are not said to have fired a single shot, therefore, the prosecution and the eye-witnesses were required to explain how these five empty cartridges were found available at the spot. Admittedly there is no explanation on the record in this regard. According to the I.O two bullets of 7 mm were also recovered from the spot but one fails to understand how bullets could have been recovered. The learned trial Judge has relied on the ballistic report Exh.18. The gun which has been recovered from appellant Imamdin is connected with the five empties found from the spot. If this gun had been used at the time of the incident, the witnesses would have deposed to that effect. As no injury was caused by the appellants to the deceased, this ballistic report will be of no consequence. Taking into consideration all the aforesaid circumstances, I am of the view that the case against the appellants is not free from doubt. Therefore, the appellants are entitled for an acquittal. Accordingly, I allow this appeal and set aside the conviction and sentence awarded to the appellants. The learned counsel for the complainant had moved Miscellaneous Application No-1702 of 1993 under section 561-A, Cr.P.C. praying that the case may be remanded to the trial Court to write and announce the judgment in respect of the absconding accused also. This application is misconceived and apart from it the learned counsel is absent. Since I have allowed the appeal, this application being infructuous is hereby dismissed. By a short order, dated 5-12-1993 this appeal was allowed, these are the reasons for the same. N.H.Q./1-240/K Appeal allowed.