THP STATE Versus SUKHIO
JAMALUDDIN H. AHMED, J.-- -The State has filed this acquittal appeal against the three respondents under section 417 of the Cr. P. C. as they were acquitted by the Ist Additional Sessions Judge, Larkana, on 5-12-1973 where they had been tried for offences under sections 449 and 302 read with section 34, P. P. C.
2. The prosecution case as stated by P. W. 3, Roshan Ali in the first information report dated 10-4-1973, was that his daughter Mst. Shah Khatoon had been married to the absconding accused in this case to Lutf Ali for about 3-4 years ago. In exchange of which Lutf Ali's daughter Mst. Wazir Khatoon had been married to Gul Hassan the complainant's brother. Lutf Ali had given in writing that he would live alongwith his wife in the house of the complainant, but he failed to do so. A month before the first report Lutf Ali left his wife Mst. Shah Khatoon with the com plainant and took away his own daughter Mst. Wazir Khatoon. He expressed that he has left his wife. On the day of incident while the complainant, his brother Gul Hassan, mother Umed Khatoon, wife Mst. Ashraf Khatoon Hidayat Ali and his minor daughter Mst. Shah Khatoon were sitting in their house at 'Tiphari' time, the absconder Lutf Ali alongwith the three respondents, Sukhio, Mehboob and Ahmed Ali entered the house. Lutf Ali Sukhio and Mehboob were armed with their licensed guns while Ahmed Ali was armed with a hatchet, Lutf Ali demanded back his wife Mst. Shah Khatoon and on refusal by the complainant party he fired at Gul Hassan who fell down, Mehboob also fired at Umed Khatoon the complainant's mother who also fell down. Sukhio fired at Hidayat Ali and he too fell down. Due to fear the complainant, his wife Mst. Ashraf Khatoon and his daughter Shah Khatoon raised cries and concealed themselves. Their cries attracted Mitho, Bukhshal and other people of the village who came challenging the culprits and also identified them as they saw them. The respondents and the absconding accused ran away firing gun shots. Gul Hassan, Hidayat Ali and Mst. Umed Khatoon were found dead due to the gunshot injuries. The witnesses gave the details of the occurrence. The complainant informed the Nekmard Zaman Khan whereafter he filed the report which was registered by Murid Ali S. H. O. Warah Police Station at 7-00 p.m.
3. The Police Officer after registering the offence proceeded to the scene of offence and due to night hours posted his guard. However, he recorded the statements of Mst. Ashraf Khatoon and Mst. Shah Khatoon. On the next day he examined the scene of offence which was in the house .of the complainant and secured blood-stained earth and fired empty cartridges from the vardat, which he sealed in separate parcels in the .presence of Mashirs Muhammad Din and Muhammad Akram.. He sent the three dead bodies to the Medical Officer Rural Health Centre, Warab, for post-mortem examination. He then recorded the statements of witnesses Bukhshal, Mitho, Jumo, Khuda Bux, Zaman Khan, Haji Ali Dino, Muhammad Shah and Mst. Wazir Khatoon. On 12-4-1973, he arrested respondent Sukhio in the presence of same Mashirs and he produced his licensed gun which was sealed by him. He then arrested respondent Mehboob who also produced his licensed gun which was sealed by the officer after preparing necessary Mashirnama. He then arrested respondent Ahmed Ali who produced his hatchet, for which also a Mashirnama was prepared in the presence of same Mashirs. After necessary investigation, i.e. getting the statements of witnesses recorded under section 164, Cr. P. C. he sent up the three respon dents for trial.
4. At the trial prosecution examined P. W. 3, Rosban Ali, P. W. 4, Mst. Shah Khatoon ; P. W. 5 Mst. Ashraf Khatoon ; as the eye-witnesses of the incident besides P. W. 6, Bukhshal and P. W. 7, Mithal who claimed to run in the house of complainant on hearing cries and to have witnessed the incident while standing at the eastern entrance of the house. The corroborative evidence was in the shape of recoveries of the guns and the hatchet which was not, blood-stained, made in the presence of the Mashirs. P. W. 8, Muhammad Bux who happened to be of the same caste as that of the complainant and other witnesses but he denied to be related to them. The report of the ballistic expert to whom the guns as well as the crime empties had been sent for examination by Investigating Officer shows that the guns are not used for the commission of the crime.
5. The medical report was furnished by Dr. Abaidullah who held the post-mortem examination of the three dead bodies and found the following injuries :-
1. Deceased Umed Khatoon---
On external examination, I found the following injuries on her person :--
(1) Six gunshot wounds side by side within a diameter of 3 over the back little to the left side (entrance wound) blackening present around the wound.
(2) 9 exit gunshot wounds over the left side of chest Within the diameter of 6 inches.
(3) Ribs 7th and 9th fractured.
(4) The injuries were anti-mortem and appeared to have been caused by discharge of a fire-arm.
On internal examination, I found as follows-
(1) 7th, 8th and 9th ribs fractured.
(2) Stomach contained semi digested food:
(3) Spleen ruptured.
2. Deceased Gul Hassan.-
On external examination, I found the following injuries :-
(1) Five gunshot wounds each x x 2" over the front and lateral side of right arm.
(2) Two gunshot wounds x x 2" over the abdomen a little to the right side of abdomen.
(3) One gunshot wound x x 1 below the right nipple.
(4) Three gunshot wounds x 1 x 2" below the right scapula.
The injuries were anti-mortem and appeared to have been caused by discharge of a fire-arm.
On internal examination, I found as follows :-
(1) Right pleura was ruptured.
(2) Right lung little bit lacerated due to pellet.
(3) Stomach contained semi-digested food.
3. Deceased Hidayatullah.-
On external examination I found the following injuries :-
(1) A gunshot wound 1" x 1" over and little lateral to the right hip joint from which a wad of the cartridge was found.
(2) Two gunshot wounds around the upper mentioned wound each x x 2".
(i) Right lateral side of the abdomen, and
(ii) right lower part of the abdomen.
(3) Multiple gunshot wounds about 30 to 40 in number over the front lateral and medical side of the right side thigh each f x I'. One pellet was found from-these wounds.
In his opinion the death has resulted on account of shock and haemorrhage caused by the gunshot injuries.
6. The respondents had denied their complicity in the crime and the cause of their being falsely implicated was given mainly in the words of respondent Sukhio as under:-
"Lutf Ali had divorced his previous wife, he was cousin and sister of co-accused Mehboob Ali and mother of co-accused Ahmed Ali. He had done so against our wishes. Then he had married with P. W. Mst. Shah Khatoon. We had turned out Lutf Ali from our house and he had no connections whatsoever with us afterwards. Mst. Waziran was detained by co-accused Ahmed Ali with our support. She was not being allowed to be taken away by deceased Gul Hassan. It was for last 2 years that Mst. Waziran was residing with Ahmed Ali. On account of the detention of Mst. Waziran by us the complainant and other witnesses have deposed against us falsely."
7. The trial Court came to the conclusion that it was doubtful whether the respondents had committed criminal house trespass in the house of the complainant and caused murders of the three persons Gul Hassan, Hidayatullah and Mst. Umed Khatoon in furtherance of their common intention. The learned 1st Additional Sessions Judge came to the conclusion that beyond the occular evidence of Roshan Ali, the complainant, his wife Mst. Ashraf Khatoon and his daughter Mst., Shah Khatoon besides Bukhshal and Mithal there was no other evidence corroborative or even circumstantial. The evidence of motive was important but the evidence of the eye-witnesses about the same was not consistent and was even found to be contradictory with their previous statements. It was, therefore, held that the motives appears to be false. He even found that the evidence of some of the witnesses was in the nature of forgery and even the evidence of eye-witnesses was conflicting with the medical evidence. In short, therefore, the evidence of the complainant, Mst. Ashraf and Shah Khatoon who were obviously hostile to the respondent was interested and the evidence of the two other eye-witnesses was false on which no reliance could be made in spite of the admitted fact that quite a number of disinterested persons lived in the village and none had been examined by the prosecution and no reliance could be placed on the witnesses who suffered from defects inconsistencies and material contradictions and who had attempted to make improvements over what they had stated in their earlier statements These conclusions according to the appellant State were erroneous and the contradictions were petty which could be discarded and that the inmates of the house being natural eye-witnesses, their evidence should have been believed.
8. At the outset Mr. Manzoor Hussain Bar-at-Law appearing for the appellant State stated that he did not press this appeal as against the respondent Ahmed Ali. He was right in doing so as neither any part was assigned to Ahmed Ali nor was his hatchet to be stained with blood by the Mashirs or subsequently by the chemical analyses. He, however, expressed his desire to press the appeal against the other two respondents upon the grounds that have already been mentioned above in the nutshell. Mr. Fateh Memon, learned counsel for the respondents, however, vehemently argued their case and pointed out that the incorroborated testimony of witnesses who were admittedly interested in implicating the respondents had been very correctly assessed by the trial Court as the same could not be relied upon safely for the purposes of conviction thereon.
9. After examining the record of the evidence of the prosecution led against the respondents at the trial one cannot resist the conclusion that the alleged eye-witnesses by their attempts to improve the case against the respondents have exposed themselves and their interest to implicate them. Their evidence is not of a nature which could be believed as true without some more corroborative evidence which could announce its credibility. There is no corroborative evidence in the present case at all. The judgment of the trial Court appears to -be based on reasoning which is quite sound. The fact that the State does not support the case against respondent Ahmed Ali, further weakens the authentity of the oral evidence of the eye-witnesses.
In any case, the overall impression left on the mind is not that the occular testimony could be treated safe for conviction. This appeal is, therefore, dismissed. The respondents are on bail granted by this Court their bail bonds are hereby cancelled.
Appeal dismissed.