LAI BEG Versus STATE

Ali Nawaz Budhani, J. -- The Additional Sessions Judge, Kandhkot by his judgment dated 19-8-1982 convicted Lai Beg s/o Muhammad Murad aged 65 years and Bhagto s/o Shah Ali aged 37 years and sentenced them to death and fine of Rs.500 each. In default of the payment of fine each shall suffer three months, R.I. further that they were ordered to pay compensation to the heirs of the deceased in the sum of Rs.5,000 each and in default to suffer imprisonment for six months more. This is an appeal filed on behalf of the two convicts and also there is a reference made under section 374, Cr.P.C. and we purpose to dispose by both this single judgment.

2. The prosecution story is briefly that on 20th April, 1979 the deceased Akbar Khan alongwith the complainant Shahbaz Khan and P.W. Muhammad Usmar. proceeded from their village to attend a Khariat arranged due to funeral of late Gul Muhammad Jakhrani at his village. The three invites travelled for about three miles in the morning at 7.00 a.m. and attend the Khariat. They took meals at the village Gul Muhammad and returned on the southern tank of Pat-feeder. They had hardly covered a distance of a furlong when two assailants Lai Beg arid Bhagio suddenly emerged from the Pat-feeder which was on the northerr, side. They challenged the deceased Akbar Khan that he was Karo and that he would not be spared. Akbar Khar retorted that he was not Karo and that.. injustice should not be done to him but the assailants fired gun-shots at Akbar Khan who collaped on canal path and died. Haji Muhammad Sallah was following the complainant's party and he too witnessed the incident. Due to the fear the witnesses Muhammad Usman and Muhammad Sallah did not go near to the accused persons who after killing the deceased Akbar Khan went away to the southern side of the canal path Shahbaz Khan left the witnesses Haji Muhammad Usman to guard the dead body while he went to the police station Buxapur at a distance of six miles and lodged the report. Motive shown was Siakhari.

3. The F.I.R. was registered by A.S.I. Ali Anwar who proceeded to Vardat forthwith. The Vardat was situated on the southern side of Pat feedar and according to Mashirnama near the Tubewell of Haji Ali Bux Jakhrani. The injuries on the deceased were noted and the inquest report was prepared. Two empty cartridges of .12 bore were said to have been secured from Sarzamein ant the same were sealed before the Mashirs Haji Muhammad Akram and Muhammad Yameen. A white turban and a Balochi cap were secured from the Vardat. The dead body was thereafter despatched to the Medical Officer, Buxapur for post-mortem through P.C. Abdul Aziz Shah, A.S.I. then examined P.Ws. Muhammad Sallah and Muhammad Usman. Not until 27-4-1979 the Investigating Officer arrested the appellants Lai Beg and Bhagio. They both were arrested on 27-4-1979 at Magher Phatak bridge of Shahi Wah. One Single Barrel .12 bore gun was secured from LEI Beg and Mashirnama Exh. 18 was prepared to that effect before Mashirs Fateh Din and Nabi Talib. On 3-5-1979 he handed over the oase papers to S.H.O. Buxapur Police Station who challaned the accused persons in the Court. The blood-stained earth as well as crime empties and crime weapon were sent to the Chemical Examiner and Ballistic Expert, respectively by the S.H.O.

4. In the statement under section 342, Cr.P.C. appellant Lai Beg who is aged 65 years has denied the allegations and states that he has been implicated in a false case. Similar is the statement of appellant Bhagio. They alleged that they have a long-standing enmity with the deceased and his relatives. Appellant Lai Bux has produced a certain documents Exh. 27 to 36 being the documents which relates to the case and various litigations in between the parties.

5. Mr. Azizullah K. Shaikh Advocate argued on behalf of the two appellants and Mr. Imam Bux appeared on behalf of the State Mr. Muhammad Nayat Junejo Advocate assisted the counsel of the State. The submissions made by the learned counsel for the appellants are that it is an unwitnessed crime and the appellants are involved due to enmity. The evidence is unnatural, contradictory and manipulated to suit the circumstances of the prosecution case.

6. The circumstances which surrounded the place of occurrence are that Vardat is shown to be on the bank of Pat-feeder on the southern side. It was a thoroughfare and the time of incident was broad daylight in the morning hours at about 8.00 a.m. According to Msshirnama of Vardat there is a tubewell of Haji Ali Bux near the Vardat. According to the sketch of Vardat prepared by Tapedar village of Muhammad Hussain and other is at a distance of 280 feet. This is a case in which none of the villagers anti for that matter none witnessed the crime excepting the party of the complaint.

7. There are two pieces of evidence against the appellants, firstly the ocular testimony of the witnesses which formed a party to attend the Khairat in the morning hours and secondly the report of the Ballistic Expert.

8. We propose to examine the ocular testimony in the first instance, Shahbaz Khan the complainant is the nephew of the deceased Akbar Khan. The other eye-witness Muhammad Usman is the uncle of Shahbaz Khan and P.W. Muhammad Sallah is a caste-fellow and relative of deceased and the complainant. In the evidence Shahbaz Khan has deposed that he alongwith deceased Akbar Khan and P.W. Muhammad Usman had gone to attend the Khairat of late Gul Muhammad in the morning at about Fajar time. The village of late Gul Muhammad was about three miles away from their village. After attending the Khairat they had returned and had hardly covered a distance of one furlong when the two appellants emerged from the northern side of Pat-feeder and challenged the deceased Akbar Khan calling him Karo and that he would not be speed. Both of the assailants were armed with guns and both of them fired gun-shots at Akbar Khan who collapsed on the ground. The assailants then ran away. Behind the complainant and Muhammad Usman one Muhammad Sallah was coming and he also witnessed the crime. In the evidence of Shahbaz Khan it is stated that he deceased Akbar. Khan did not take meals in the morning as he was medically advised not to take beef. Evidence of the complainant Shahbaz Khan was recorded by the trial Court on 18-10-1981 i.e. about 21 years after the incident. He has made improvement in the examination-in-chief to the F.I.R. and has stated that Akbar Khan deceased did not take the meals in the morning while all the others took the Khairat. It is to be noted that the Medical Officer who conducted the autopsy had found the stomach of the deceased empty. That means the deceased had not taken meals during the morning and he had taken last meals during the last evening of his death. This improvement is made by the complainant after being conscious of the medical opinion. In the cross-examination this witness admitted that the two assailants had come from the northern side of the Pat-feeder. He has however, denied a suggestion that the villages of Shah Ghazi and Shah Bingae Mirkhani were near the place of occurrence. In the cross-examination complainant has further stated that Lai Beg fired two shots and the deceased fell on the ground. Thereafter appellant Bhagio came near the deceased putting the muzzle of the gun on the left side forehead of the deceased and fired a shot. It is not disclosed in the examination-in-chief but this improvement is made in the cross-examination as tie witness is conscious that there are two empties secured from the Vardat by the police. Lai Beg had single barrel gun that means he could throw only one cartridge in order to have the second shot. So far the enmities between, the parties are concerned, he denies them.

The improvement with regard to the shots fired by each of the assailants and specially the appellant Bhagio who placed the gun near the head of the deceased and fired the third shot is an afterthought considering that the medical evidence shows that were fired from a close distance so much so the skull was severely fractured and the brain matter was coming out. This is very significant improvement.

7. The evidence of P.W. Muhtammad Usman is similar to that of the evidence of the complainant Shahbaz Khan. He is, however anxious to tell the Court that the deceased did not take the meals at Khairat due to medical advise. The evidence of P.W. Muhammad Sallah is at Exh. 11 and he has deposed that at about 7.00 a.m. he attended the Khairat at the village of late Gul Muhammad. The deceased Akbar Khan, Shahbaz Khan the complainant and P.W. Muhammad Usman were already present at the Khairat when the deceased and the complainant's party left the village. They followed them at a little distance. They travelled on the southern side of the Pat-feeder. When they covered about a furlong from the Pat-feeder from northern side. Both the them fired at deceased Akbar Khan who fell down. After committing the crime the two assailants went away to the southern side of the Pat-feeder. In the cross-examination he states that none was attracted towards. the Vardat after gun reports. The Vardat was on the thoroughfare. He admits that he is the caste-fellow of the deceased Akbar Khan. This witness further dyes not speak of the number of the gun shots fired at the deceased. In fact he does not disclose as to how many shots were fired at the deceased.

8. The ocular testimony has fufered from the glaring defects and infirmities. They are:-

"(a) The evidence before the court contradicts and varies from the F.I.R. It is averred that the deceased did not take meals at the Khairat because he was medically advised so. In the F.I.R. such a note is not inscribed and on the contrary it is said that after taking meals at the Khairat they had returned alongwith the canal path of Pat-feeder.

(b) In the F.I.R. it is said that both the assailants fired at the deceased who fell down. In the evidence they have improved to say that Bhagio went near the deceased and fired shot on the head of the deceased from a close range."

9. These glaring and outstanding improvements in the wake of their evidence show that the witnesses are not in a habit to speak straight forward the truth and that they can change their versions according to the circumstances. The first defect with regard to not taking meals by the deceased is only to clear that the medical evidence shows that the stomach of the deceased was empty. This effort was made to explain the medical opinion that the deceased, did not take any meals in the Khairat. The deceased, if medically advised not to take beef, could have taken any other meals and certainly if he has gone to attend Khairat he would not return without taking some sort of food. This caste a serious doubt and very reasonable at that the complainant party had either not gone to attend the Khairat or they have spoken a lie that the deceased did not take meals. The second defect is also very fatal which is regarding variance of the evidence of the witnesses inasmuch as that they have improved to explode one more shot to crush the skull of the deceased to be in consonance with the medical opinion that the gun-shot was fired from a close range. It shows that they had fired in all three shots but on the spot only two crime empties were available. The Investigating Officer collected two crime empties from the Vardat. The Investigating Officer gathered from the F.I.R. as registered by the complainant that there were two assailants and both of the assailants had fired from their guns and therefore only two crime empties were secured from the Vardat. According to the improved version of the witnesses he should have found three crime empties on the Vardat because fired cartridges are to be thrown out to reload the guns to be prepared for any emergency. We are not impressed by the testimony of the eye-witnesses and their evidence is of doubtful character and could not be relied upon considering the circumstances of the case. It was a broad day light and the gun shots would at least attract the people of neighbouring village and at least attract the persons whose tube-well was near the Vardat. It appears to us that the story stated by the prosecution witnesses if framed and the incident has taken place during the night time. It is not known as to how the victim reached the place near the tube-well of Haji Ali Bux Jakhrani. The two assailants belong to different villages in taluka Kash more and it is not explained as to how they joined hands together to have an attack on the deceased at the relevant time as if they knew that the deceased would return alongwith same path to which he had attended Khairat. It is also strange to note that the two assailants were arrested together seven days after the incident from Mahgar Phatak bridge Shahi Wah. Only one crime weapon which is a licensed gun is secured from the old man Lai Beg Jakhrani. The Investigating Officer has not explained or at least is not brought on record as to what he was doing from 20th to 27 th April, 1979. Whether he had gone to the village of Lai Beg or to the village of Bhagio to arrest them. Nothing is clear and suddenly they are arrested together from the Maghar Pathak. For seven days the police diary is quiet.

10. The evidence of the Medical Officer at Exh. 12 shows that deceased had sustained one lacerated wound 10" x 8" fracturing the skull and the brain matter was protruding second injury was on the chest and the third on the left hand. There was charring of skin with regard to the first injury. The Medical Officer has further seen the internal damage and has particularly noted that the stomach was found empty containing mucus only. The nature of injuries on the body of the deceased indicate that the first injury of firearm is on either chest or head but the head injury is fired from a very close range indicating that the deceased was in a postage condition. The medical evidence proves one fact that the incident has not taken place after sunrise time but in all probability it has taken place during the night time.

11. The appellants are arrested on 27-4-1979 i.e. seven days after the incident. Evidence of Mashir Fateh Din indicates that they were arrested from Mahghar bridge of Shahi Wah. Both the accused were arrested from the same place and on the same date. Appellant Lai Beg was armed with his licensed singled barrel gun which was secured from his person while the other appellant Bhagio was not armed with any weapon. Fateh Din is distantly related to the complainant and P.Ws. The presence of the two assailants together on the same bridge at the same time is not explained by the A.S.I. conducting the investigation. Appellant Lai Beg belonged to a village in Deh Sodhi taluka Kashmore. While appellant Baghio belonged to Deh Gulanpur taluka Kashmore. Both the appellants belonged to different villages and how they came the Maghar Phatak of Shahi Wah is not explained. A gun was secured from appellant Lai Beg. It was sealed and sent to the Ballistic Expert. The Mashirnama of Vardat shows that the police had secured two crime empties from the Vardat. The evidence of the eye-witnesses shows that in all three shots were fired so there ought to be three crime empties on the Vardat.

12. The Ballistic Expert had found the two crime empties fired from the .12 bore single barrel gun secured from the appellant Lai Beg. The Ballistic Expert can do nothing but firing two extra cartridges and finding certain curvatures and measurements at the cartridges and assessing the force of the trigger. That is all the ballistic expert has done in the instant case also and has come to the conclusion that the two crime empties namely C-1 and C-2 were fired from the same shot-gun which was secured from appellant Lai Beg. It is easy for the police to manoeuvre manage and to send the crime empties firing any two cartridges from the same gun and sealing the same. The testimony of the Ballistic Expert on the face of it would only be reliable if all the necessary precautions are taken before reliable Mashirs that the crime empties are sealed and not tempered with or substituted by the police and were sent in the same .condition as they were secured to the Ballistic Expert. These steps are lacking in the instant case. We have considered the evidence of the Ballistic Expert and observe the same to be unreliable in the sense that crime empties secured from the Vardat seem to be planted.

13. Now we advert to, the motive of the crime. From the dialogues that took place between the deceased and the assailants it appears that the assailants announced that the deceased was Karo and therefore he deserved to be shot dead. This is the only motive indicated in the ocular testimony and this hardly inspires any confidence. It is not proved as to with whom the deceased was declared Karo or that earlier he was declared Kari with certain woman. It appears to us that the motive is not a strong one although murders are committed want only and without motive yet in this case Kari Kari is. the motive which is obscure. It appears that the witnesses have not dilated on the subject of motive more than short dialogue that ensued between the assailants and the deceased. They have actually abandoned the motive. In, such a case when the motive is false and abandoned it would adversely react on the version of the eye-witnesses. Reference is made to1981 S C M R 54. The trial Court has held that the motive is to get rid of the deceased due to long-standing enmity between them. However, we may observe where such a situation arises then the benefit goes to the accused and not to the prosecution.

14. We have anxiously considered the ocular testimony. We do not attach any value to the ocular testimony considering the circumstances surrounding the scene of offence and the relationship that they have with the deceased and the complainant. There are numerous documents produced by the appellants before the trial Court which suggest enmity between the parties. We have pointed out the discrepancies strange improvements made by the eye-witnesses in their testimony to suit the prosecution case. We also doubt the participation of the deceased in the Khairat at the village of late Gul Muhammad. In all probability the incident took place during the night time or at least not in the manner suggested by eye-witnesses. Other circumstances which surrounded the incident go against the prose cution. In any case we consider the evidence on record to be doubtful and the benefit of doubt goes to the accused persons. As such we acquit the appellants giving them benefit of doubt and the appeal is allowed and if they are in custody they be released forthwith, if not wanted in any other case. The reference under section 374, Cr.P.C. is rejected. The benefit under section 382-B, Cr.P.C. after verification, be given to the appellants.

M. Y. H. Appeal allowed.