SHAMMAN Versus STATE

Appellants Shamman, Bangul Bilawal, Uris and Nazar Mohammad were tried by the learned Sessions Judge, Larkana. Appellant Shamman was convicted under section 395 read with sections 397, 307, 323 read with section 34, P. P. C. and also under section 13(d) of the West Pakistan Arms Ordinance. 1965. He was sentenced to seven years' R. I. three years' R. I., six months' R. I. and 12 months' R. I. respectively. The other four appellants, namely, Bangui, Bilawal, Uris and Nazar Mohammad were convicted under sections 395 and 323 read with section 34, P. P. C. Each of them was sentenced to three years R. I. under the first count and to six months R. I. under the second count. The sentences in case of all the appellants were ordered to run concurrently. The appellants feeling themselves aggrieved by their convictions and sentences have now appealed.

2. The relevant facts of the prosecution case briefly are these. Com plainant Mohammad Nawaz lives in Dost Mohammad Mochi village in his house. Inside the house there was also his cattle‑pen in which he used to tether his bullocks. The incident took place on the night between 27th and 28th of November 1970 at after mid‑night time. On the night of the incident the complainant was sleeping in his house where a lamp was also burning. At mid‑night time he got up on the noise. He saw two culprits in his house who had untethered his bullocks and were about to go out. He identified these two culprits to be appellants Nazar Mohammad and Bilawal. They were armed with hatchets. According to him he had seen the faces of these appellants from a distance of 5 or 6 paces and identified them in the light of the lamp as their faces were open. The complainant then raised cries whereupon his son Abdul Ghani (P. W. 2), Sher Mohammad, Mithal, Abdul Ghafoor (P. W. 4) and Mohammad Sadiq (P. W. 3) came to his house. At the time the complainant bad raised cries he was given blows with back side of hatchet by appellant Nazar Mohammad. Appellants Nazar Mohammad and Bilawal went out from his house. The complainant and the other witnesses mentioned above chased the culprits, who, were taking away the stolen bullock of the complainant. Outside the house they saw three more culprits who were identified by them to be appellants Shamman, Bangul and Uris. These appellants had been identified in the light of the torch which the complainant had with himself and he had flashed it upon these culprits. During the chase of the alleged culprits the complainant party reached them at a distance of about half a call from the house of the complainant and they caught hold of the appellant Shamman while other alleged culprits are said to have run away leaving the bullock behind. P. W. Abdul Ghani had given a hatchet blow to appellant Shamman which had caused injury to this appellant on his foot. The complainant and his companions secured the bullock at the place where appellant Shamman was alleged to have been caught. It is also alleged that appellant Shamman had a pistol with him and they secured the pistol from this appel lant. According to the prosecution version appellant Shamman had aimed his pistol at P. W. Abdul Ghani for firing but it had misfired. The complainant then apprised the other witnesses of the facts of the incident and they also exchanged facts between one another. The complainant and other P. Ws. then brought appellant Shamman to the house of the complainant. While other P. Ws. sat to watch the appellant Shamman, the complainant went to his Nekmard Dur Mohammad (not examined) and then he went to Drigh Police Station where he lodged his F. I. R. Exh. 6 at 6 a.m. the distance of the police station being about 3 miles from the scene of offence. Accord ing to the complainant the appellant Uris and Bangui had also carried hatchets.

3. The F. I. R. was registered by A. S. I. P. Drigh Police Station Mr. Abbas Ali (P. W. 6). When he recorded the F. I. R. he found the complainant Mohammad Nawaz having injuries and so he prepared a mashirnama of his injuries Exh. 14 in presence of mashirs Baloch Khan and Mohammad Shafi. The S. I. P. then gave the complainant a letter for going to the doctor in the hospital. Then the stolen bullock was produced at the Thana which was secured by the A. S. I. P. as per mashirnama Exh.

15. The A. S. I. P. then went to the scene of offence. There he saw appellant Shamman sitting tied up in the house of the complainant. This appellant had an injury at his foot which too he noticed. Mashirnama regarding this injury of the appellant Shamman and his arrest Exh. 16 was prepared as this appellant was put under arrest. The pistol said to be of appellant Shamman was produced by P. W. Abdul Ghani. It eras found in working order and one mis‑fired cartridge was in it. The pistol and the cartridge were secured as per mashirnama Exh. 17 by the A. S. I. P. P. W. Abdul Ghani then produced a hatchet, a lamp and a torch belonging to his father, the comp lainant which articles were secured by the A. S. 1. P. as per mashirnama Exh.

18. The torch and the lamp were found in working order by the investigating officer. The first scene of offence was shown to the A. S. I. P. which was in the cattle Landhi of the complainant where the place of the burning of the lamp was also shown to him. The place of tethering and untethering the bullock was also pointed out to him. The second scene of offence was about half a call distance away from the house of the comp lainant. There was some blood visible at that spot and there were marks of encounter between the culprits and the witnesses as well as hoof marks of the bullocks. Mashirnama of these two scene of offences Exh. 19 was prepared and the mashirs were Baloch Khan (P. W. 5) and Jamal. After interrogating the appellant Shamman A. S. I. P. referred him to the doctor for treatment etc. The A. S. I. P. then recorded statements of Abdul Ghani, Mohammad Sadiq, Abdul Ghafoor, Mithal, Sher Mohammad and Dur Mohammad. The A. S. I. P. then made efforts to secure the other culprits named in the F. I. R. but he was unable to arrest them. However, on 8‑12‑1970 all the other four appellants namely, Bangui, Bilawal. Uris and Nazar Mohammad surrendered themselves at the Drigh Police Station and they were put under arrest by the police. The S. H. O. then challaned all the appellants to the Court on 14‑12‑1970. The A. S. I. P. P. W. Abbas Ali also lodged a separate F. I. R. against appellant Shamman becoming complainant on behalf of the State under section 13 (d) of the West Pakistan Arms Ordinance 1965 which he has produced as Exh.

21. He then challaned the appellant Shamman for this offence also. After the appellants were challaned they were committed to the Court of Session in due course of time where they took their trial with the result already mentioned above.

4. All the appellants when questioned under section 342, Cr. P. C. denied every allegation of the prosecution and professed innocence.

5. Appellant Shamman said in his statement that the pistol had been foisted upon him. He gave a different version as to how he came to be caught by the complainant and other P. Ws. and said that he was innocent and was given blow as he was taken to be a thief. His version in his own words is as follows:‑

"I heard cries of 'thief, thief' of complainant and others. I went running from my field at midnight, to the vardat and there I was tied up by witnesses, given blow and foisted with pistol. I had slept at my field on that night. I was suspected to be thief of bullock and, therefore, implicated in this case. I had enmity with witnesses as they used to prevent me from passing by their village. I do not know why I was being prevented from passing by their village.

I produce F. I. R. (copy) Exh. 27‑A filed by Asanmal against Ghulam Qadir and others. Ghulam Qadir is brother of complainant. Gul Mohammad and Noor Mohammad are witnesses and they care related to me."

6. Appellant Bangui also stated in his statement that he was innocent and was implicated due to enmity over land. All the remaining three appellants have also made the same statement about their false implication in the case as has been made by appellant Bangui. Thus, they all claimed enmity with the complainant party over land.

7. None of the appellants has examined any witness in defence.

8. The fact that the complainant Mohammad Nawaz received hurts that appellant Shamman also sustained an injury on his foot does not it of any doubt as there is evidence of Dr. Nisar Ahmad who examined in these injured persons and his deposition in the committal Court been brought on the record of the trial Court as Exh.

2. The doctor in testimony says that when he examined Mohammad Nawaz (complainant) found the following two injuries on his person:‑

(i) One contused wound 2' x J' with swelling on back of right hand over the 4th meta-carpe bone.

(ii) One abrasion J' x f on the middle I/3rd of left leg over its skin.

9. According to the doctor these injuries were simple in nature appeared to have been caused by some hard blunt substance such as h a lathi or back side of the hatchet. The doctor also examined appellant Shamman who was referred to him at 5 p. m. on the next day of night of the occurrence and on examination of the person of this pant he found the following injury on him;

(1) one incised wound 4' x 1' x cutting muscles and tender bone of ht heel extending from the medial malleolus up to the lateral malleolus of ht ankle joint.

10. According to the doctor this injury was grievous in nature and geared to have been caused by some sharp cutting weapon such as a Chet.

11. The prosecution relied upon the evidence of four alleged eye -witnesses only as regards the main incident of the alleged dacoity. Those witnesses are complainant Mohammed Nawaz and P Ws. Abdul and, Mohammed Sadiq and Abdul Ghafoor. All these witnesses it is admitted by the Complainant Mohammed Nawaz in his cross‑examination are tied inter se. He specifies the relationship of P. W. Abdul Ghafoor as ig his son and refers to other alleged eye‑witnesses as his relatives has also admitted in his cross‑examination that his lands are near the le of offence and the land of appellant Shamman is about 20 paces away n the scene of offence. He has also admitted that they and the appellant side have dispute over water and cattle trespass. The appellant Shamman has also produced copy of the F. I. R. Exh. 27‑A filed by one Asanmal against Ghulam Qadir brother of the complainant and others. Mohammad and Noor Mohammad are prosecution witnesses in that and they are related to this appellant. Thus all the above admissions the F. I. R. Exh. 27‑A clearly show that there are disputes and enmity Veen appellants Shamman on one side and the complainant on the other and also that there are disputes between the complainant side and ail appellants over lands and cattle trespass. The ocular evidence of the alleged four eye‑witnesses, therefore, it has been argued by the learned counsel for the appellants, ought not to be relied upon unless it is corroborated by some other independent evidence on record which is lacking in the present case. Furthermore, he has said that the complainant alleges that after the incident he went and apprised his Nekmard Dur Muh ammad about the facts of the occurrence but this Dur Mohammad has not been examined by the prosecution and, therefore, an adverse interference against it has to be raised as a presumption that if be had been examined he would not have supported the prosecution. The learned counsel further contends that according to the prosecution there were totally six alleged eye‑witnesses but only four have been examined and the other two, namely, Mithal and Sher Mohammad who are also said to have witnessed the occurrence are not examined by the prosecution so that as respects these witnesses also a presumption arises against the prosecution that if they had been examined they would not have supported the complainant's case. I find the above contentions of the learned counsel for the appellants not without force and even the learned counsel i.e., the Assistant Advocate‑General appearing on behalf of the State has also conceded that he does not support the convictions and Sentences of the appellants for the reasons advanced by the counsel for the appellants and further states that the explanation of the appellant Shamman that he had come from his land on hearing cries of the complainant and his party who took him to be a thief and also caused him an injury is a reasonably plausible story which can be accepted as the complainant Mohammed Nawaz in his cross‑examination has admitted that land of appellant Shamman is 20 paces away from the scene of offence.

12. Besides the above reasons I find that the eye‑witnesses examined have also made favourable answers to the appellants in the committal Court with which statements they have been confronted in their testimony in the trial Court. The complainant has admitted in his cross‑examination at the trial that his torch fell down at the place where he was given blows, which he was given at a distance of 10‑15 paces away from his Lorah (enclosure of house) at that time. He said the witnesses were 10 or 15 paces away from him when the torch fell down. P. W. Abdul Ghani has admitted to the committal Court that no pistol was secured from appellant Shamman. He has also said in that Court that he produced the pistol before the police and further has not said therein that the appellant Shamman aimed pistol at him. He also admitted that he had said in the committal Court that appellant Shamman had a hatchet at the time when they caught him. He has produced his lower Court deposition as Exh.

8. He has also admitted in his cross‑examination that he has stated in the committal Court that the bullock was 4 or 5 paces away from the fence. P. W. Mohammad Sadiq has also said in the committal Court that he saw pistol which Abdul Ghani and he did not see pistol with Shamman. According to the complainant when the bullock which the culprits were said to be taking away at the encounter had got loose and run away to the jungle from where it was secured but this witness P. W. Mohammad Sadiq has stated in his cross -examination that there was no jungle between the scene of offence and the house of the complainant and the bullock did not run towards the jungle. He also admitted that he did not see the bullock with any of the appellants. He has also admitted in his committal Court deposition that they had identified the appellants on 'hakal' (voice) and that pistol was not with appellant Shamman but it was with P. W. Abdul Ghani. P. W. Abdul Ghafoor has stated in his committal Court deposition that he did not identify the appellants. He also said that the bullock came to the house of its own accord. He has further said therein that Abdul Ghani informed them on the way while coming to, the house that he had snatched the pistol from Shamman appellant. He has also said therein that for the first time they saw the pistol with Abdul Ghani and that the latter was his cousin. He has also said in the committal Court that he did not see the bullock with the appellants and that Abdul Ghani told him that the latter had rescued the bullock from Bilawal appellant.

13. It will be seen from all these above mentioned admissions of the eye‑witnesses in the committal court that they have been giving conflicting version of the incident and are not consistent in their story of the occurrence. In fact these admissions of their absolve the present appellants of their criminal liability or at least a reasonable doubt about their guilt is thereby created. In addition to all these is also the fact that I find it difficult to accept the prosecution story to be true as inherently and intrinsically it appears to me to be doubtful because it does not stand to reason that as many as five culprits would join bands together in order to commit dacoity of one bullock only. It can be said perhaps that only some of them i.e., 3 or 4 out of them might be the culprits but it is not known who out of them are those that would be innocent persons as such on this score the benefit of doubt is also to be given to them all. I might also add another reason which goes in favour of the appellant and that is that the Ballistic Expert although available to the prosecution has not been examined in this case to show that the mis‑fired cartridge was actually mis‑fired from the alleged pistol said to have been recovered from appellant Shamman. For not examining the Ballistic Expert a presumption arises against the prosecution that if he had been examined he would not have supported the prosecution. case.

14. I am conscious of the fact that the alleged eye‑witnesses in their evidence have stated that before giving evidence even in the committal Court they have compromised with the appellants party on the oath of Quran Sharif, therefore, they have made favourable answers in the committal Court in order to save the appellant from punishment. But it will be appreciated that in doing so these witnesses themselves are to blame any if they have of their own accord compromised the case with the appellant then of course the benefit will naturally on their evidence go to the appellants. They cannot, therefore blame the Court for the acquittal of the, appellants.

15. For the foregoing reasons and discussion of evidence I am of the opinion that the appellants at least are entitled to the benefit of doubt and, therefore, they deserve to be acquitted. Accordingly, I allow their appeal and set aside convictions and sentences. The appellant Shamman only is in jail and he shall be released forthwith unless required to be detained in connection with any other matter while the rest of the four appellants are on bail and their bail bonds shall stand discharged.

Appeal accepted.