MUHAMMAD Versus THE STATE Muhammad Hayat Jonejo , Abdul Ghafoor Mangi, A.A.G.

The appellant was tried alongwith acquitted accused Punhoon. He was convicted under section 302, P.P.C. and sentence to imprisonment for life and fine of Rs.10,000 in default of payment of fine to suffer six months' R.I. It was further directed that he shall pay Rs.15,000 as compensation to the heirs of the deceased persons in equal share. In case of none‑deposit of compensation he shall suffer nine months' more R.I.

2. The facts in brief are that complainant Haji had lodged the report on 30‑5‑1975 at 7‑30 a.m. at Sakran Police Station, Nawabshah wherein he has stated that during the night between 29th and 30th May, 1975 the deceased Shahdad and Khuda Bux were in their house alongwith the other inmates including the complainant. At about 9‑30 p.m. they received a call from outside and complainant Haji went out having torch in his hand. He found 10‑11 persons armed with guns and rifles. Out of them he identified six persons to be accused Punhoon, Muhammad, Janib, Misri, Gullan and Ali Hassan. Muhammad talked with the complainant and asked him to send his grandfather Haji Shahdad and maternal‑uncle Khuda Bux as he has some work with them. He went inside the house and informed Hay Shahdad and Khuda Bux. In the meanwhile Muhammad, Punhoon, Janib, Misri. Gullan and Ali Hassan entered into the house and dragged Haji Shahdad and Khuda Bux out. The complainant Haji also followed them. The culprits took Haji Shahdad and Khuda Bux to their tube‑well and then complainant Haji raised cries of murder, murder which attracted P.Ws. Rasool Bux, Mahi and others. At that time Haji Shahdad and Khuda Bux were shot dead by the culprits, whereafter they expressed that they suspected these deceased to have hand in the murder of their relatives Mir, Sher, one Chandio and Bano Korai which took place 1 years back and they have taken the revenge. It is further alleged that thereafter the culprits proceeded towards Katcha side and went at cattle pen of Muhammad Bux where he was sleeping alongwith his son Noor Muhammad and P.W. Rahim Lakho. They got them up, tied their hands and drove them towards forest. On the way the culprits said to them that they had killed Haji Shahdad and Khuda Bux and will also kill them in the forest. Thereafter, Muhammad Bux requested them to leave boys Noor Muhammad and Rahim and take him, whereafter these boys were released. After release they started running towards their village and at some distance they heard fire reports. When they came at their village they learnt about the incident at the village. Complainant Haji went to their Nekmard Dost Muhammad Khan Godaro and then lodged the first information report with Sakrand Police Station. After departure of complainant his co‑villagers went to the forest and found Muhammad Bux lying dead. After usual investigation the police put up the case against the present appellant, acquitted accused Punhoon in this case, Janib, Gullan, Misri and Ali Hassan. The appellant and Punhoon were shown absconders. The case proceeded against the remaining accused and those accused were eventually discharged by the Additional Sessions Judge by the order, dated 15‑5‑1976 as none of the P.Ws. and implicated them. The present appellant and the acquitted accused Punhoon were arrested subsequently and they were charge‑sheeted to face the trial.

3. After the trial the prosecution examined P.Ws. Mahi, Noor Muhammad, Muhammad Rahim, Rasool Bux. Usman, Mehboob Ali, Dr. Mohib Shah and Police Inspector Shafi Muhammad. Since complainant Haji and P.W. Rasool Bux. Head Constable had expired, therefore, their depositions recorded to the previous trial were brought on record under section 33 of the Evidence Act.

4. In their statements the accused denied the allegation.

5. Dr. Mohib Shah who conducted the post‑mortem found the following injuries on the person of the deceased:‑

Deceased Khuda Bux son of Ali Khan

(1) Seven punctured gunshot wounds each measuring " x " x cavity deep on the front of chest. Charring was present.

(2) Big punctured gunshot wound 3" x 1" x cavity deep on the right chest four fingers below the nipple. Wad pieces detected from the wound.

(3) Big lacerrated wound 6" x 6" pieces of the skull on occipital region, brain completely protruded from the wound.

(4) Big punctured gunshot wound 2" x 2" muscle deep on the inner side and middle of left thigh, bone was fractured.

(5) Three punctured gunshot wounds each measuring " x " muscle deep on the left leg upper part near the knee joint.

(6) Big punctured gunshot wound 4" x 4" x cavity deep on the right chest lateral part above the lumber region.

(7) Three punctured gunshot wounds each measuring " x " x muscle deep on the lateral aspect of left thigh pellets detected from the wound.

In the opinion of the doctor the injuries appears to have, been caused by a discharge after fire‑arm such as gun. All the injuries were anti‑mortem. Distance of injuries was within four feet. From the external as well as internal examination the doctor was of the opinion that the death of the deceased was due to shock and haemorrhage and also due to laceration of brain consequent upon the all injuries.

Deceased Muhammad Bux son of Hap Shahdad.

(1) Punctured gunshot wound " x " x cavity deep on the lower part of right back. Wad pieces and pellets detected from the wound.

(2) Big punctured gunshot wound 3" x 5" cavity deep on the middle of stennum, bone is fractured.

(3) Punctured gunshot wound 2" x 2" x cavity deep on the epigastrium region.

In the opinion of the doctor, the death of the deceased was due to shock and haemorrhage consequent upon the injuries mentioned above. The external injuries appeared to have been caused by discharge from fire‑arm such as gun.

Deceased Hap Shahdad son of Photo Gudaro.

(1) Punctured gunshot wound " x " x cavity deep on the lower part of right back.

(2) Big punctured gunshot wound 2" x 2" x cavity deep on the epigastrium region.

(3) Two punctured gunshot wounds each measuring " x

(4) Punctured gunshot wound 2" x 2" x cavity deep on left right lumber region.

(5) Lacerated wound 6" x 4" x muscle deep on the upper part and the lateral side of right thigh.

(6) Two punctured gunshot wounds each measuring 1" x x muscle deep below the left elbow joint.

The doctor was of the opinion that the death of the deceased was due to shock and haemorrhage consequent upon the injuries mentioned above. The death was instantaneous. The nature of weapon used was discharged from fire‑arm such as gun.

The learned trial Court held that deceased Shahdad, Khuda Bux and Muhammad Bux died on account of fire‑arm injuries. On the assessment of evidence he convicted the appellant and acquitted the co‑accused Punhoon.

The case against the present appellant rests on the ocular testimony of complainant Hap and P.Ws. Mahi, Rasool Bux, Rahim and Noor Muhammad.

In the previous trial the witnesses have exonerated the accused persons who were facing trial and it is, therefore, necessary to refer to their evidence. P.W. Mahi has stated that 10‑12 persons armed with rifles were present and he identified only one person that is the present appellant, who was armed with rifle and he fired rifle at Hap Khuda Bux and Hap Shahdad at the tube‑well at the distance of about 400 feet from the house. He was confronted with the previous statement. In his statement he has stated that he had seen the culprits from the distance of 400 feet. When he came out of the house Hap complainant flashed the torch. In his previous statement he has stated that he had seen six persons armed with rifles. He has further stated that he .had not identified others with accused Muhammad to be Janib, Misri, Ali Hassan, Gullan and Punhoon. In his 161 as well as 164 statement. He has admitted that complainant Hap has been murdered and in that case Ali Ahmad, Bahadur and Bano Gudaras are accused.

P.W. Noor Muhammad had also not supported the case against the accused who were. facing trial in the previous trial but has implicated the present accused in the present case. He was confronted with his previous statements recorded under sections 161 and 164 wherein he had given the names of six persons who had been acquitted.

Same is the position with regard to deposition of Muhammad Rahim and Rasool Bux.

Complainant Haji was examined in the previous trial and he had also exonerted the accused facing trial in that case.

The learned Sessions Judge has believed the statements of these witnesses on the ground that they had given the true narration of facts. As the witnesses have narrated two different versions at two different stages, therefore, their statement cannot be accepted as gospil truth. There must be some convincing evidence to convict the accused. The witnesses have contradicted themselves. They have specifically named the accused in their '161 and 164 statements but they did not depose against those accused who have been acquitted. The witnesses were declared hostile. They are self‑condemned liars. The evidence of such witnesses has to be read with caution and there is no corroborative piece of evidence in this case as the abscondence of the accused have been ruled out by the trial Court itself.

7. It is pertinent to point out that the statements of the witnesses were recorded in 1984 in the trial against the appellant. The incident took place in 1975 and the witnesses have exonerated the accused in the previous trial. It is, therefore, doubtful if the witnesses have remembered verbatim their evidence after the expiry of about 10 years of the incident. Then the identification of the accused were on the torch light and implicit reliance cannot be placed on such type of identification. The incident admittedly occurred at about 9‑30 a.m.

The ocular evidence is contradicted by the medical evidence. The witnesses in their 161 and 164 statements have stated that the present appellant was armed with rifle. In the present trial two witnesses have stated that the appellant was armed with rifle whereas the two witnesses have stated that he was armed with gun. According to the medical evidence the deceased had received gunshot injuries. The nature of the injuries would show that the deceased had died on account of gunshot injuries and not rifle injuries. It has been stated by the P.Ws. in their earlier statements that the present appellant was armed with rifle, therefore, the appellant cannot be convicted on this evidence as there in no injury by means of rifle on the person of the deceased.

8. For all the aforesaid reasons the prosecution has not been able to establish the case against the present appellant. He is, therefore, acquitted of the charge and the appeal is accepted as such. He shall be released fortwith, if not required in any other case.

S.G.D. Appeal allowed