1989 SCMR 1461 (PLP)

JAVID IOBAL, J.‑‑This appeal has been filed by Shehruddin complainant and is directed against judgment of the High Court of Sind at Karachi, dated 17th December, 1978 whereby the convictions and sentences awarded to the respondents by the trial Court were set aside and they were acquitted. The background is that five respondents namely Allah Rakhio, Muhammad Saleh, Jurio, Adlu alias Abdul Karim and Pario were tried by the Sessions Judge Dadu and were convicted and sentenced as follows: All of them were convicted under section 302/149, P.P.C. for the murder of Ghulam Muhammad deceased aged 70 years and each of them was sentenced to death plus fine of Rs.1,000 or m default to undergo six months' R.I. They were also convicted under section 148, P.P.C. and each of them was sentenced to one year's R.I. Similarly they were convicted under section 325/149, P.P.C. and each of them was sentenced to one year's R.I. plus fine of Rs.500 or in default to undergo three months' R.I. Muhammad Saleh and Allah Rakhio respondents were further convicted under section 13‑D of the Arms Ordinance and each of them was sentenced to one year's R.I. These two only were likewise convicted under section 404, P.P.C. and sentenced to one year's R.I. each. All of them except Pario respondent filed an appeal before the High Court of Sind. However Pario respondent's case was before the High Court for confirmation of the death sentence awarded to him under section 374, Cr.P.C. The High Court vide the impugned judgment as stated above acquitted all the five respondents of the aforementioned offences. Leave to appeal was granted in this case against all the respondents in order to consider as to whether the eye‑witnesses in the instant case who were related to the deceased but there having existed no hostility A between them and the accused party which could induce them to falsely implicate the respondents in this case, could be termed as interested witnesses and their testimony discarded. It was also granted on the ground that the conclusions arrived at by the High Court were not tenable and the reasons given by it for disbelieving the prosecution evidence were not convincing. According to the F.I.R. the occurrence took place at 00.45 hours on 8 March 1976 near Dubi Minar close to the land of one Ramzan Lund at a distance of 3‑1/2 miles from village Duobo, Police Station Dadu, District Dadu. The report was lodged by Shehruddin appellant grandson of Ghulam Muhammad deceased at Police Station Dadu on the same day at 2‑30 a.m. and it was recorded by Muhammad Shafi A.S.I. The motive advanced by the prosecution is that about 5/6 years before the present occurrence Mst. Hatul daughter of the brother of Allah Rakhio respondent was abducted by Pario respondent alongwith another and a report to that effect was lodged with the police which recovered Mst. Hatul and produced her before the Court, lodging the accused named in that case in the jail. At the time of her production Mst. Hatul prayed before the Court that since she apprehended danger to her life at the hands of her relatives, in order to spare her life she may be given in the custody of Nek Mard of village namely Ghulam Muhammad deceased. The Court ordered accordingly and thus Mst. Hatul used to live with Ghulam Muhammad deceased. Pario respondent is said to have spent some time in jail and came out after undergoing his sentence for the said offence. However the relatives of Mst. Hatul instituted proceedings under section 107, Cr.P.C. against Ghulam Muhammad deceased. They objected to the lying of Mst. Hatul with Ghulam Muhammad deceased and had circulated the rumours that Ghulam Muhammad deceased had an illicit relationship with Mst. Hatul. In the background of these allegations one Allah Rakhio claiming his guardianship over Mst. Hatul filed an application in the Court that she be given in custody to one Mubarak Lund. The Court ordered accordingly. However the respondents being relatives of Mst. Hatul went on issuing threats time and again that they would take revenge from Ghulam Muhammad deceased for developing illicit relationship with Mst. Hatul. Subsequently Pario respondent is stated to have become a Hari of Ghulam Muhammad deceased and it was through his mechanization that Ghulam Muhammad deceased was brought out on the fateful night and afterwards murdered by all of them. This incident as stated above took place on 8 March 1976 at 00.45 hours, A little earlier than that Maqbul Ahmad P.W.2 another grandson of the deceased came and informed his brother Shehruddin the present appellant who was studying for his MA. examination that he had been summoned by their grandfather namely Ghulam Muhammad deceased. Thereupon Shehruddin appellant accompanied by Maqbul Ahmad P.W. went to the Otak of Ghulam Muhammad deceased and saw Muhammad Waras P.W.3 cousin of Maqbul Ahmad P.W. as well as Pario respondent present there. Ghulam Muhammad deceased told them that some thieves had entered the house of his Hari (Pario respondent) and that they had attempted to commit theft of his two bullocks which were standing there. However Pario respondent succeeded in rescuing the bullocks. Thereafter Ghulam Muhammad deceased asked them to accompany him to check up and preserve footprints of the thieves. All of them then left together alongwith a lighted lantern and a torch. They also took with them the licensed revolver as well as gun of Ghulam Muhammad deceased. They went along the canal and when they reached near the house of Pario respondent they saw in the torch light four persons standing near the water‑course. They were identified as Allah Rakhio. Muhammad Saleh, Jurio and Adlu alias Abdul Karim respondents. Allah Rakhio, Muhammad Saleh and Jurio respondents were armed with guns whereas Adlu alias Abdul Karim respondent had a Lathi in his hand. On seeing them Allah Rakhio respondent gave a Lalkara to Ghulam Muhammad deceased that the time had come to take revenge of Mst. Hatul from him. At this stage Pario respondent also joined the other respondents instigating them not to spare the life of Ghulam Muhammad deceased. On this Allah Rakhio, Muhammad Saleh and Jurio respondents fired shots from their respective guns (three shots) at Ghulam Muhammad deceased instantaneously. Ghulam Muhammad deceased was hit and he fell down. He died on the spot as a result o firearm injuries. Then Adlu alias Abdul Karim respondent came forward running and gave Lathi blows to Maqbul Ahmad P.W. on his head and other parts of the body. Thereafter all of them raising Lalkaras ran away. The three eye‑witnesses present there namely Maqbul Ahmad P.W.2, Muhammad Waras P.W.3 and Shehruddin complainant‑appellant P.W.7 were subdued due to fear. However in their presence Allah Rakhio respondent took away the revolver of Ghulam Muhammad deceased whereas Muhammad Saleh respondent took away his gun while leaving the spot. Thus according to the report lodged by Shehruddin appellant, Pario respondent in collusion with the other four respondents made a conspiracy and then succeeded to murder Ghulam Muhammad deceased on account of enmity caused on suspicion respecting Mst. Hatul. It has already been pointed out that the three eye‑witnesses in this case are closely related to the deceased, Maqbul Ahmad and Shchruddin P.Ws. being brothers are grandsons of Ghulam Muhammad deceased whereas Muhammad Waras being cousin of Maqbul Ahmad was also closely related to the deceased. However, there is nothing on the record to show that they were in any way hostile to the members of the accused party so as to involve them falsely in a murder case. In this case four crime empties had been picked up from the spot. Out of these two crime empties matched with the gun which had been recovered from Allah Rakhio respondent and the other two had matched with the gun recovered from Muhammad Saleh respondent. It may further be pointed out that the licensed gun and revolver belonging to Ghulam Muhammad deceased were also recovered from these two respondents. The gun of the deceased was recovered from Muhammad Saleh respondent whereas his revolver was recovered from Allah Rakhio respondent. From Adlu alias Abdul Karim respondent was recovered a Lathi but since it was not blood‑stained it is of no corroborative value. So far as Jurio and Pario respondents are concerned nothing was recovered from them. According to the medical evidence the deceased had a firearm wound behind right shoulder, another firearm wound below right shoulder joint and a lacerated wound on the left temporal region. The death had occurred due to firearm injury which was sufficient to cause death in the ordinary course of nature. From the medical evidence it appears that the deceased died as a result of one shot whereas according to the prosecution version not less than three shots had been fired and according to the circumstantial evidence four crime empties had been picked up from the spot. So far as Maqbul Ahmad P.W. is concerned he had on his person four blunt weapon injuries out of which one was grievous and the others were simple in nature. It is evident that Maqbul Ahmad P.W. was present on the spot alongwith Ghulam Muhammad deceased when they had been attacked as he had received injuries in the course of the occurrence at the hands of Adlu alias Abdul Karim respondent. All the respondents had denied participating in the occurrence. Those from whom recoveries had been effected had disowned them. According to them they had been falsely implicated due to hostile and interested witnesses set up as against them. We have carefully examined with the assistance of the learned counsel for the appellant the reasoning of the High Court covered by pages 172‑179 of the paperbook on the basis of which the respondents were acquitted. In the light of the ocular testimony corroborated by the recovery evidence and supported by the evidence of motive as well as medical evidence learned counsel argued before us that the High Court was not justified in disbelieving the testimony of Shehruddin complainant appellant, Maqbul Ahmad and Muhammad Waras P.Ws. particularly when their testimony had found corroboration to a large extent from the recovery evidence as well as circumstantial evidence. According to learned counsel the High Court erred in arriving at the conclusion that since the eye witnesses were related to the deceased, they should be considered as interested. It was submitted that mere relationship of the eye‑witnesses with the deceased without the existence of any enmity between them and the accused party which could induce them to falsely implicate the respondents in this case, would not make them interested witnesses. Learned counsel for the accused‑respondents on the other hand attempted to argue that the impugned judgment of the High Court was based on sound reasoning to the effect that it was a night time occurrence and the witnesses being closely related to the deceased had rightly been disbelieved. We have considered the arguments of the learned counsel and carefully perused the record. It is evident that out of the three eye‑witnesses one had sustained injuries in the course of the occurrence and his presence on the spot cannot be doubted. His version of the occurrence is being supported by the two other eye‑witnesses. Again despite the fact that the three eye‑witnesses are related to the deceased there is nothing on the record to show that they had any enmity with the accused party so as to falsely implicate them in this case. According to the ocular account the deceased was enticed away to the spot by Pario respondent under the pretence that he had rescued his bullocks from being stolen by the thieves and that he should accompany him to the spot so as to preserve their footprints. The deceased apparently did not go alone with him but took with him two of his grandsons besides his revolver, bandolier and gun. Muhammad Waras P.W. had also accompanied them to the spot. Even though it was night, in the F.I.R. it is alleged that they had taken a lighted lantern and torch with them. Even if the torch had been produced before the police on the morning after the occurrence, it was reasonably probable that they might have taken these articles with them to the spot if the intention was to preserve the footprints of the thieves in the darkness of the night. They had naturally to be equipped with light for this purpose. Therefore if they had light with them there could be no difficulty in their identifying the respondents who were found to be present when they arrived at the spot. So far as the occurrence is concerned the ocular version is that three members of the accused party namely Allah Rakhio, Muhammad Saleb and Jurio fired through their guns which they were carrying. Thus according to the eye‑witnesses at least three shots were fired if not four. Out of these shots fired in the dark one had definitely hit the deceased which led to his death. Subsequently when Maqbul Ahmad P.W. advanced forward possibly in order to rescue his grandfather he was attacked by Adlu alias Abdul Karim respondent who cause injuries to him with his Lathi. Naturally in such a situation Shehruddin complainant‑appellant and Muhammad Waras P.Ws. became subdued due to fear. This made the accused party further bold so as to take away the gun revolver etc. belonging to the deceased. The ocular version to a very large C extent finds corroboration through the recovery of crime empties which matched with at least two guns recovered from Allah Rakhio and Muhammad Saleh respondents. Again from these very two respondents were recovered gun, revolver etc. of the deceased. In that view of the matter the conclusions arrived at by the High Court were not tenable and the reasons given by it for disbelieving the prosecution evidence are not at all convincing. In the light of the above discussion in our considered opinion the prosecution had succeeded in establishing its case as against all the respondents beyond any shadow of doubt. As a result the impugned judgment of the High Court is hereby set aside and this appeal is allowed. The trial Court was correct in convicting the aforesaid five respondents under sections 302/149, 148, 325/149, P.P.C., and in addition to Allah Rakhio and Muhammad Saleh respondents under section 13‑D of the Arms Ordinance and under section

404. P.P.C. These convictions are accordingly upheld. The sentences of imporisonment awarded to them by the trial Court and fine imposed under sections 148, 325/149, P.P.C., under section 13‑D of the Arms Ordinance and under section 404, P.P.C. are likewise maintained. However since it cannot be ascertained as to whose gun shot had hit the deceased in the darkness, sentences of death awarded to each of the respondents under section 302/149, P.P.C. are hereby altered to that of imprisonment for life in each case 'out the fine of Rs.1,000 each under the aforesaid sections is increased to Rs.5,000 Q each or in default to undergo six months' R.I. If the fine of Rs.5,000 each is realised from these respondents it should be paid as compensation to the heirs of , Ghulam Muhammad deceased Similarly if the fine of Rs.500 each under section 325/149, P.P.C. is realised from the respondents it should be paid as compensation to Maqbul Ahmad injured P.W. The sentences awarded to all the respondents shall run concurrently. The respondents should surrender themselves to the police so as to undergo the sentences awarded to them. A.A./S‑263/S Appeal accepted.