P L D 1961 (W (PLP)

A. R. KHAN, J.‑

In this case (1) Jogi son of Piral, (2) Ghulam Hyder son of Rasool Bux, (3) Bako son of Rasool Bux, (4) Rasool Bux son of Imam Bux, (5) Ramzan alias Ghani son of Rasool Bux, (6) Datto son of Ali Muhammad, (7) Dodo son of Lal Bux and (8) Nawab 'son of Khan Muhammad, have been convicted and sentenced as shown below. (1) All of them have been convicted of the offence of murder punishable under section 302 read with section 149, P. P. C., and Jogi, Ghulam Hyder, Bako, Rasool Bux, Datto, Dodo and Nawab have been sentenced to death, subject to confirmation by the High Court, while Ramzan has been sentenced to transportation for life. (2) All of them have been convicted for offences punishable under sections 147 and 148 P. P. C. and sentenced to suffer R. I. for two years. (3) All of them have been convicted of an offence punishable under section 326 and been sentenced to suffer R. I. for 7 years. (4) All of them have been convicted of an offence punishable under section 324, P. P. C. and been sentenced to suffer R. I. for two years. (5) All of them have been convicted of an offence punishable under section 323, and been sentenced to suffer R. I. for one year. All of them except Bako and Datto, have in addition been convicted under section 19‑E of the Arms Act and been sentenced to R. I. for 2 years. The sentences of imprisonment passed against all of them have been ordered to run concurrently. It has been ordered at the same time that the sentences of imprisonment against the accused, who have been sentenced to death, would become effective only if their sentences of death are not confirmed. It is against all these convictions and sentences that they have come in appeal to this Court, while a reference under section 374, Cr. P. C. has been made by the learned Sessions Judge for the confirmation of the death sentences passed by him in this case. By this judgment both the said appeal and reference are being disposed of.

2. Appellants Rasool Bux, Nawab, Dodo and Ramzan alias Ghani belong to Haji Khuwasti village in Taluka Shikarpur District Sukkur, about two miles from Khair Muhammad village where Azim and Mst. Alam Khatoon were residing at the time of the occurrence, while appellants Jogi, Ghulam Hyder, Bako and Datto belong to Nabi Bux village and Warah Taluka District Larkana, at a considerable distance from it.

3. Appellant Jogi is a cousin of deceased Daud Sanjrani, who was the first husband of Mst. Alam Khatoon. Appellants Ghulam Hyder, Bako and Ramzan alias Ghani are sons of appellant Rasool Bux. Appellant Datto is said to be related to the other appellants, although it is not explained by any witness how he is related to them. Appellants Dodo and Nawab are cousins inter se, and are nephews of appellant Rasool Bux.

4. Daud Sanjrani died about 12 months before the occur rence under consideration in this case. His widow, deceased Mst. Alam Khatoon, a few months after his death, that is, in June 1959, married her cousin deceased Azim, in spite of the opposition of her first husband's relations, that is, the appellants in this case. It was due to this re‑marriage that Mst. Alam Khatoon and her husband, deceased Azim were being threatened with violence `from time to time. It was due to these fears that Mst. Alam Khatoon had on more than one occasion submitted applications to the officers concerned that she as well. as her husband, Azim, were in danger of losing their lives.

5. Before anything effective could be done by the authorities concerned in the matter, at about midnight between the 22nd and 23rd September 1959, all the' appellants went to the house of Bhagio in Khair Muhammad Sanjrani village, Taluka Shikarpur. At that time, in his house his sons, deceased Azim and Rato, his nephew Hiro, Mst. Alam Khatoon, wife of Azim, Mst. Vaziran wife of Hiro and his own wife, Mst. Karam Khatoon were sleep ing. Appellants Jogi, Ghulam Hyder, Rasool Bux, Ramzan alias Ghani, Dodo and Nawab were armed with guns, while appellants Bako and Datto had hatchets in their hands. s

6. Appellant Jogi fired some shots at Azim and his brother Rato, and thereby killed both of them. Nearly at the same time, Rasool Bux fired a spot at Hiro and killed him. Similarly, Mst. Alam Khatoon was fired at and she too was killed on the spot. At this stage, Bhagio, father of Azim and Rato; started grappling with app:llant Jogi. Thereupon appellant Datto gave him hatchet blows and caused him serious injuries. On being thus injured, Bhagio fell down. Mst. Vaziran, wife of Hiro, and Mst. Karam Khatoon, wife of Bhagio and mother of Azim and Rato, also received some injuries at the hands of the appellants. Having thus killed Azim, Rato, Hiro and Mst. Alam Khatoon, and injured Bhagio, Mst. Vaziran and Mst. Karam Khatoon, all the appellants ran away.

7. Soon after they had gone, Chodio and his brother Karam Khan, maternal uncles of P. W. Mato, arrived at the scene of occurrence on hearing the cries. They were informed of the facts by the complainant who subsequently went and lodged his report at Khanpur Police Station at about 2 a.m. on the 23rd of September 1959.

8. H. C. Pirbux, after recording Mato's report, went to the scene of offence, and prepared the inquest reports of the dead bodies of Azim, Rato, Hiro and Mst. Alam Khatoon, Having done so, he recorded the statements of the injured witnesses, namely, Bhagio. Mst. Vaziran and Mst. Karam Khatoon, and Chodio and Karam Khan. Having done so, he sent the dead bodies of Azim, Rato, Hiro and Mst. Alam Khatoon; along with the injured Bhagio, and Mst. Vaziran to the Shikarpur Hospital, where on the same day, Mr. Khawaja Hassan, examined the injuries of Bhagio and Mst. Vaziran, and held post‑mortem of the dead bodies of Azim, 'Rato, Hiro and Mst. Alam Khatoon. On the following day, that is the 24th of September 1959, he examined the injuries of Mst. Karam Khatoon, who arrived at the hospital on that day.

9. Appellants Jogi, Ghulam Hyder, Bako and Datto were arrested by S. I. Hazar Khan from their village on the 26th of September 1959, and a blood‑stained shirt found on the person of appellant Jogi was secured by him at the time of his arrest. On the same day, in the course of the search of the house of appellant Jogi, a ' 12 bore country made pistol was found hidden in his bedding, which was kept tied up, and was secured by Sub-Inspector Hazar Khan. On the 29th of September 1959, appellant Ramzan alias Ghani, Rasool Bux and Nawab were arrested by S. I. Hazar Khan from their village. On the 3rd of October 1959 a gun was recovered from underneath a heap of manure near his house at the instance of appellant Dodo. Ten empty cartridges of 12 bore gun were found in the house of Bhagio on the 23rd of September 1959, and secured by S. I. Hazar Khan, and were sent to the Ballistic Expert along with the12 bore gun for examination.

10. The defence in brief is that the appellants have been falsely implicated by the persons who have been examined as eye witnesses for the prosecution in this case, they were their old enemies; and had been entertaining grudge against them for one reason or the other. It has, therefore, to be considered whether the convictions of the appellants are warranted by the evidence of these witnesses.

11. According to the prosecution, Mato (P. W. 3), Bhagio (P. W. 4), Mst. Vaziran (P. W, 5) and Mst. Karam Khatoon (P. W. 6) are the eye‑witnesses of the occurrence under consideration, while Chodio and Karam Khan are the persons who had arrived at the scene of offence soon after the occurrence, and were informed by the eye‑witnesses how they themselves, and the persons killed, had been attacked. Bhagio is the father of deceased Azim and Rato. Mst. Karam Khatoon is his wife, Mst. Vaziran is wife of deceased Hiro, a cousin of Bhagio. Mato is nephew of deceased Hiro. Chodio and Karam Khan are brothers and paternal uncles of Mato. Out of these four witnesses, Bhagio, Mst. Karam Khatoon and Mst. Vaziran were actually injured in the course of the occurrence under consideration. Their presence, therefore at the scene of occurrence can hardly be doubted. There is no reason, as a matter of fact even to doubt the presence of Mato, who had escaped being hurt in the course of the said occurrence, as he was living in the same house too. According to these four witnesses, they themselves and deceased Azim, Rato, Hiro and Mst. Alam Khatoon were sleeping in one and the same compound on the night of the occurrence. All of them have said that it was at about midnight that the appellants had come to their house. According to them, Appellants Bako and Dato were armed with hatchets while the remaining appellants had guns in their hands. According to their version, they had, on being fired at, got up and recognised the appellants in the moonlight. They have, as a matter of fact, gone so far as to say which of the appellants had attacked or fired at which of the victims, and thereby caused them certain injuries.

12. The date of the occurrence, that is, the 23rd of September 1959, was equivalent to the 19th of Rabi‑ul‑Awwal. on that day, ‑the sun had set at 6‑2 p. m. while the moon had risen at 10 8 p.m. Therefore, it is obvious that if this occurrence had taken place as alleged by the eye‑witnesses, it must have taken place after 10 p.m., because according to all of them it was in the moonlight that they had identified the culprits. From the post‑mortem examination of Mst. Alam Khatoon, it appears that she died about 3 hours after taking her last meals, while Rato, Azim and Hiro appear to have been done to death about 2 hours after taking their last meals, as some semi‑digested food was found in their stomachs. If Mst. Alam Khatoon, Azim, Rato and Hiro had been killed at about midnight, as alleged by the said eye‑witnesses, then they must have taken their food between 9 and 10 p.m., that is, about 3 to 4 hours after sunset. But there was no particular reason for their taking their meals so late on the night of the occurrence. Therefore, in all probability, they had, along with the other inmates of their house, taken their meals much earlier. Therefore it appears that they had been done to death long before midnight, possibly before the moon had come up. This being the position, it is doubtful if the moonlight had helped the said eye‑witnesses in recognizing their assailants.

13. As already stated, Azim, Rato, Hiro and Mst. Alam Khatoon, the victims of the attack under consideration, and Bhagio, Mst. Vaziran, Mst. Karam Khatoon and Mato were sleeping in one and the same compound on the night of the occurrence. They could not possibly have been sleeping all clustered up in one and the same corner. In the very nature of things they must have been sleeping at different places in that compound. Therefore, at the time when they were attacked and fired at, Bhagio, Mst. Vaziran, Mst. Karam Khatoon and Rato could not possibly have been in a position to notice how and by whom the persons who were killed or injured had been attacked or fired at. It was obviously impossible for them in such a situation to notice which of them had received injuries at the hands of which of the alleged culprits. This must be so particularly because almost all of them were sleeping at the time when the attack was made. As a matter of fact the learned trial Judge himself while reviewing their evidence, has observed that it was impossible for the witnesses to remember and to mark minutely as to who actually had fired at the dead. This being the position, the word of the alleged eye‑witnesses could hardly be accepted as true when they say so and so had attacked and injured or killed so and so in the course of the offence.

14. There is no doubt that the appellants, who were related to one another, become enemies of Azim and his relations ever since he had married Mst. Alam Khatoon widow of Daud, who was related to them. It was due to this enmity that Mst. Alam Khatoon had made a complaint against the appellants. It was on her complaint that proceedings under section,

107. Cr. P. C. had been started against them. As a matter of fact, according to the prosecution itself it was due to this enmity that the appellants had gone to the house of Azim on the night of the occurrence, killed him, his brother Rato, his cousin Hiro and his wife Mst. Alam Khatoon, and injured his father Bhagio, his mother Mst. Karam Khatoon and his cousin's wife Mst. Vaziran. The witnesses examined as eye‑witnesses in this case, namely, Bhagio, Mst. Vaziran, Karam Khatoon and Mato, as already indicated, are not only closely related to deceased Azim, Rato, Hiro and Mst. Alam Khatoon, but were admittedly enemies of the appellants. That being the position, their evidence against them cannot safely be accepted as true, unless and until it is corroborated in material particulars so far as their identity is concerned.

15. It was with a view to supporting the evidence of Bhagio, Mst. Vaziran, Karam Khatoon and Mato that the prosecution had adduced evidence regarding certain recoveries referred to elsewhere. So far as the recoveries of the 3 hatchets from appellant Ramzan alias Ghani is concerned, it would suffice to say that they were not even alleged to have been found to be stained with blood, much less human blood. The 12 bore single Barrel gun recovered from Dodo could not be said to have been used in the commission of the offence under consideration, because none of the empties found at the scene of offence, was said to have been fired from it. The pistol said to have been recovered from the bedding of appellant Jogi, was admittedly not in working order. The shirt that was recovered from his person was not certified to be stained with human blood. The evidence regarding such recoveries, therefore, does not obviously help the prosecution in getting the version given out by Bhagio, Mst. Vaziran, list. Karam Khatoon and Mato corrobo rated. There is no other corroboration available in this case. We do not, therefore, think that it would be safe to rely on the evidence of Bhagio, Mst. Vaziran, Mst. Karam Khatoon, Mato, Chodio and Karam Khan, as all of them were closely related to and interested in deceased Azim, Rato, Hiro and Mst. Alam Khatoon, and were admittedly enemies of the appellants.

16. Considering all these facts and circumstances, we have been driven to the conclusion that the prosecution has failed to prove its case against the appellants Jogi, Ghulam Hyder, Bako, Rasool Bux, Ramzan, Datto, Dodo and Nawab beyond reasonable doubt. In view of this finding, we allow their appeal, and set aside their convictions and sentences, including the sentences of death passed upon Jogi, Ghulam Hyder, Bako, Rasool Bux, Datto, Dodo and Nawab.

17. The learned counsel for the appellants vehemently con tended that the learned Sessions Judge has acted illegally in that he has tried the case although it was not fixed for hearing before him. According to the learned counsel, the case having been transferred to the Additional Sessions Judge, the latter had fixed a date for hearing before him, and on that date, for reasons known to him the learned Sessions Judge, without passing any order, sent for the case through a peon and tried it himself. There is considerable force in this contention. The record which is before us, contains no order of the Sessions, Judge, which, under the law, he is required to pass if he withdraws the case from the file of the Additional Sessions Judge, to whom he had earlier transferred the same, and this order, like any other order under the Criminal Procedure Code, is to be a judicial order. But, since we are allowing the appeal on other grounds, we do not propose to go into this question in this appeal. K. B. A. Appeal allowed.