1977 P Cr (PLP)

S. Manzoor Hussain for the State. Date of hearing : 3rd November 1976. The learned Sessions Judge, Khairpur, convicted the appellants for offences under sections 302 and 307/34, P. P. C. On the first count, they were awarded death sentence, and, on the latter count, four years' R. I. and a fine of Rs. 500.00, or, in default, to undergo R. I. for six months more. There was a further order that they, if recovered, shall pay the fines, to Mst. Madina and Mst. Mumtaz by way of compensation for the injuries sufferred. The other two co-accused, namely, Karimdino and Mir Muhammad, who were arraigned, have been acquitted. There is a reference by the learned Sessions Judge, as required under the law, and there is also an appeal filed by the convicts. The reference and the appeal will be disposed of by this composite judgment. 2. The prosecution story, in brief, is that there was a blood feud between the parties, and threats had been conveyed for revenge. On the night of the 9th of October 1971 at about 1-00 a.m. the appellants, accompanied by eight other persons, all armed with guns, are alleged to have trespassed into the house of Moar, situated at Pir Pagaro Keti, and killed him, along with his wife Mst. Khatija, and his son, Hakim Ali, while Mst. Madina, the wife of Hakim Ali, and her minor daughter, Mst. Mumtaz, escaped with injuries. Afghan, a brother of Moar, who lived in a different village alto gether, and who happened to be staying with his brother, Moar, on the night of the incident, however, remained unhurt. He had proceeded to Ahnoedpur Police Station, and lodged the report, at about 9-45 a.m. A. S.1. Mian Khan, after recording the First Information Report, had proceeded to the wardat, where he found the dead bodies lying on the ground. He also verified the injuries on the persons of Mst. Madina and Mst. Mumtaz. There were four empties lying at the wardat, and the same were secured. He prepared the inquest report, and sent the dead bodies to Pirjogoth Dispensary for post mortem examinations. The injured persons were also referred to the said dispensary for treatment. Thereafter, he made enquiries from Alidino and Manoo alias Manthar. On 10-10-1971, enquiries were made from Mst. Madina, Pathan and Budhal. The S. H. O., Muhammad Aslam, had also reached the wardat, after hearing of the incident, and verified the investigation carried on earlier. On 21-10-1971, he arrested Jalal and Moula. Two loaded guns were secured from under their beds. The co-accused, Karimdino, since acquitted, came to be apprehended on 18-11-1971. So was the co- accused Miroo. It appears that the guns secured from the appellants were referred to the Ballistic Expert, and the blood-stained earth secured from the wardat was sent to the Chemical Examiner. Subsequently, the case came to be challaned in Court. 3. The appellants in their statements at the Court of Enquiry as well as at the trial denied the various allegations made against them, and maintained that they had been run down because of enmity. They also produced a number of documents in support thereof. 4. In the light of the view we are taking, it will not be necessary to detail the injuries suffered by Moar, Mst. Khatija and Hakim Ali, or for the matter of that, those of Mst. Madina and Mst. Mumtaz. We have the evidence of Dr. Abdul Qadir, who was the Medical Officer at Pirjogoth Dispensary, and who had performed post mortem examinations on tile the dead bodies, and also examined the other two injured, and found that all the injuries were from fire arm. Another salient feature of the case is, that, though the guns recovered from the appellants and the empties had been sent to the Baslistic Expert, but the latter has not been examined. 5. The only evidence in the case against the appellant is the eye-witness account, which has been furnished by Afghan, 11st. Madina, P.W. Alladino and P. W. Manoo alias Manthar. The last two of the witnesses are brothers inter se, and are the cousins of the complainant, and, as has been mentioned earlier, Mst. Madina is the wife of the deceased, Hakim Ali. Karimdino who has been named in the First Information Report, and his case will be on par with that of the appellants, as the only additional evidence against them, that is the recovery of the guns, is out of consideration, and had also not passed muster. with the learned Sessions Judge. Even the threats conveyed b5 the appellant for the reprisal has been disbelieved by the trial Court. All the same, there can be no manner of doubt that there was a blood feud between the. parties, but that cuts both ways. Mr. S. Manzoor Hussain, learned counsel for the State, conceded that he could not see any distinction between the case of Karimdino, who has been acquitted, and that of the appellants, because even Karimdino, had been specifically mentioned and a role had been assigned to him. The stand adopted by Mr. S. Manzoor Hussain is not open to any exception, because, otherwise too, there are intrinsic flaws in the statements of the witnesses. All the witnesses make out the presence of Afghan at the house of Moat-, though he was living 19 miles away; the; witness himself however put it at a distance of four five miles to explain the delay in the lodging of the First Information Report. There are contra dictions in regard to the place, where Mst. Madina was at tile time of the incident. It is stated that she was offering prayer, but that was not to be the version at the earlier stages. It is also an admitted position that a number of people had turned up on the outcries, but nobody from outside the family has been examined. The town had a population of 4,000/5000 people. It also appears from the statements of the witnesses that one of the culprits was armed with a hatchet but that is not to be found in the First Information Report. The identification of the assailants is based on the light of a lantern burning in the house, but in the pandemonium that must have ensued - and the firing on the victims would not have taken long - it is difficult to imagine that there could have been a proper identification of the A Culprits. The evidence, therefore, led by the prosecution, under the circum stances, is not worthy of complete reliance in the absence of the confirma tory circumstances from any quarter. It will, therefore, be totally unsafe to maintain the conviction. 6. "In the result, the reference will not be accepted. The conviction and the sentences awarded to the appellants are set aside, and the appeal is allowed. The appellants; are in ccustody and they will be released forthwith, unless wanted in connection with some other case. Appeal allowed.