GULOO ALIAS GUL MUHAMMAD Versus THE STATE

1. Appellants Guloo alias Gul Muhammad, Achar and acquitted accused Bahadur and Rasool Bux were tried for offences under sections 302, 336, 148, 149, P.P.C. being outcome of Crime No.50/86 lodged at Police Station Sakrand on 3-5-1986 by complainant Ali Hassan Khoso. While acquitting accused Bahadur and Rasool Bux, learned trial Court of IInd Additional Sessions Judge, Nawabshah, by judgment, dated 15-2-1993, convicted both the appellants for offence under section 302, P.P.C. and sentenced them to suffer imprisonment for life and further to pay fine of Rs.10,000 each and in default to undergo R.I. for 2 years more. Appellants are also directed to pay compensation of Rs.10,000 each under section 544-A, Cr.P.C. to the heirs of the deceased and in default thereof, to undergo imprisonment for one year more. The appellants are given benefit of section 382-B, Cr.P.C. They have challenged their conviction and sentence through this appeal.

2. The facts of the case as given by complainant Ali Hassan Khoso are, that on 3-5-1986, he alongwith P.Ws. Muhammad Ali, Bloch Khan and Yateem Khoso left their village for going to Sakrand Town. While on their way, deceased Yateem asked the complainant and witnesses to go with him for taking a round of his field before going to Sakrand. All of them, therefore, went towards the land of Yateem Khoso where the two appellants, acquitted accused Bahadur, Rasool Bux and absconding accused Akbar Machhi suddenly appeared and they challenged saying that they would not spare Yateem Khoso, The complainant and witnesses Muhammad Ali, Bloch Khan then kept aside at a distance of about 10 paces, when at the instigation of accused Rasool Bux, Gul Muhammad fired at the deceased which hit him on his chest and he fell down. Thereafter accused Achar fired at Yateern Khoso which hit the latter at his thigh and due to profuse bleeding, Yateem Khoso died. On the cries raised by complainant and witnesses, P.Ws. Ghulam Abbas, Mohabat and other villagers were attracted and seeing them, the accused fled from Wardat. The motive for the murder of Yateem Khoso, as alleged in the F.I.R. was that deceased had a dispute with accused over the tenancy of land which was previously cultivated by accused Achar but under orders of the Deputy Commissioner Nawabshah he was dispossessed. Accused felt offended over their dispossession and used to extend threats, because of which proceedings under section 107, Cr.P.C. were initiated against them. On the day of incident, it is alleged that the deceased was going to Sakrand for attending 107, Cr.P.C. proceedings pending before the Mukhtiarkar and F.C.M. Sakrand.

3. S.H.O. Ikramullah Memon proceeded to the Wardat, situated in the lands of one Aslam Khanzada in Deh Tali where dead body of Yateem Khoso was lying. Mashirnama (Exh.18) was prepared in presence of Mashirs Ghulam Ali and Ghulam Akbar and from the Wardat one empty cartridge was secured which was sealed into a parcel. Inquest report (Exh.19) was also prepared in presence of the same Mashirs, whereafter the Investigating Officer recorded statements of witnesses Ghulam Abbas, Muhammad Ali, Baloch Khan and Mohabat. On 12-5-1986 accused Akbar, Bahadur and Guloo were arrested under Mashirnama (Exhs.20 and 21). Accused Bahadur produced his licensed gun and the licence before the Additional S.H.O. Accused Gul Muhammad produced his licensed gun and licence. On 13-5-1986 accused Akbar led the police to his house and dug out a gun wrapped in a cloth concealed under a Talhi tree which was secured under Mashirnama (Exh.23). The recovered weapons were sent to Ballistic Expert while the blood-stained earth was sent to Chemical Analyser. Accused Rasool Bux, who was granted pre-arrest bail by the Sessions Court, Nawabshah subsequently absconded. On 14-5-1986 the witnesses were produced before Mukhtiarkar and F.C.M. Sakrand who recorded their statements under section 164, Cr.P.C. The dead body of Yateem Khoso was sent to the Government Hospital, Sakrand for post-mortem examination. On completion of investigation, the case was sent up against the four accused. On 14-11-1990 charge was framed against appellants and acquitted accused by 1 st Additional Sessions Judge, Nawabshah, for offence under sections 302, 148, 149, P.P.C. to which they pleaded not guilty and claimed trial.

4. Prosecution examined P.W.1 Ali Hussain (complainant) (Exh.11) who produced F.I.R. Exh.12, P.W.2 Muhammad Ali (Exh.13) who produced his statement under section 164 of Cr.P.C. (Exh.14), P.W.3 Ghulam Abbas (Exh.15) who produced his 164, Cr.P.C. statement (Exh.16), P.W.4 Ghulam Ali (Mashir) Exh.17 who produced Mashirnama of Wardat (Exh.18), Inquest R sport (Exh.19), Mashirnama of arrest of accused Akbar and Bahadur (Exh.20), Mashirnama of arrest of accused Guloo (Exh.21), Mashirnama of recovery of licensed gun and the licence from accused Guloo (Exh.22) and Mashirnama of recovery of gun from accused Akbar (Exh.23), P.W.5 Dr. Ellahi Bux Medical Officer, Sakrand (Exh.25) who produced post-mortem report (Exh.26), P.W.6 Tapadar Abdul Karim (Exh.27) who produced sketch of Wardat (Exh.28), P.W.7 Ikramullah S.H.O. and Investigating Officer (Exh.29) who produced the report of ballistic expert (Exh.30) and Chemical Analysers, report (Exh.31) and lastly P.W.8 Mushtaq Ahmad Shah (Exh.33) who was posted as A.S.I. Police Sakran who produced Mashirnama of arrest of accused Achar (Exh.34).

5. Statements of accused under section 342, Cr.P.C. were recorded vide Exhs.36 to 39 and they denied prosecution evidence against them. Accused Rasool Bux further stated that he had enmity with Zamindar Chappar Khan Khoso who implicated him in this case through his Haries, the prosecution witnesses. The appellants or the acquitted accused did not examine themselves as their own defence witnesses nor they led any defence evidence. On conclusion of trial, the learned trial Court acquitted accused Bahadur and Rasool Bux, and convicted the two appellants who have challenged their conviction and sentence.

6. I have heard the learned counsel for the appellants and A.A,-G, The latter has supported the conviction of appellants.

7. It is contended by Mr. A.Q. Halepota, learned Advocate for the appellants, that the trial Court misread the evidence inasmuch as, it has been mentioned that the Investigating Officer secured five empty cartridges lying at the Wardat at different places when, in fact, the Investigating Officer, Ikramullah had stated in his evidence that he did not remember how many empties were recovered by him from the place of incident. Similarly another misreading by the trial Court pointed out is, that while discussing Point No.2 the learned trial Court observed that the prosecution relied upon the ocular evidence of complainant Ghulam Hassan, P.W. Muhammad Ali and Ghulam Abbas when, in fact, it is not Ghulam Hassan but Ali Hassan who is the complainant. In so far as the evidence of P.W. Ghulam Abbas is concerned the learned trial Court itself rejected his evidence on the ground that it was hearsay and further observed that his evidence was not helpful to prosecution. It is also pointed out that the learned trial Court incorrectly mentioned in its judgment that the police secured five empty cartridge from the site when the Wardat was first inspected. According to the learned counsel the Mashir Ghulam Ali Khoso stated that only one empty cartridge was recovered by police as is mentioned in Mashirnama Exh.18. It has further been pointed that the learned trial Court observed in the impugned judgment that all the three guns recovered from accused Guloo, Bahadur and absconding accused Akbar were sent to ballistic expert alongwith alleged five empties recovered from the site. According to the learned Advocate, the gun and rifle and so also cartridges or bullets recovered from accused Bahadur were not sent to ballistic expert. The purpose of pointing out to all these is that the trial Court did not apply its mind to the facts of the case while writing the judgment and such misreading has resulted into miscarriage of justice. The next contention of the learned Advocate is, that because charge against appellants under sections 148, 149, P.P.C. was not proved, therefore, application of sections 148, 149, P.P.C. could not be attracted. It is next argued that the eye-witnesses, namely, complainant Ali Hassan and Muhammad Ali are not believed in respect of acquitted accused Bahadur and Rasool Bux and the same evidence could not have been believed in respect of the appellants without independent corroboration. The learned trial Court has taken corroboration to the ocular evidence of complainant Ali Hassan and Muhammad Ali from medical evidence and recovery of weapons. For that, it is argued, that the medical evidence which was not in conformity with ocular evidence could not lend any support to the ocular testimony for the simple reason that in F.I.R. it is shown that the injury was sustained by deceased Yateem on left knee whereas the P.W.5 Dr. Ellahi Bux stated that deceased had a lacerated fire-arm wound of 5 c.m. in diameter on middle of left side thigh posterio-laterally. The complainant Ali Hassan stated in evidence that deceased had two fire-arm injuries, one on the right side of chest while the other on the buttock. P.W. Muhammad Ali also stated in his evidence that the second injury sustained by deceased due to the fire-shot by accused Achar was on the buttock. The learned Advocate has pointed out that the explanation given by the learned trial Court in resolving this controversy is misconceived, as either knee or thigh could not be mistaken by the witnesses as buttock. The purpose of pointing out this inconsistency in the medical evidence and the ocular evidence is, that in fact, none had seen deceased Yateem being fired at and all accused were implicated on the basis of previous enmity between the parties. It is next argued that there was no,-evidence of motive against appellant Guloo and his involvement is totally false. It is argued that in a case like this the point to be considered would be whether conviction of appellants could be sustained on the evidence of complainant Ali Hassan and Muhammad Ali which is not believed in respect r of the acquitted accused. As pointed out earlier, P.W. Ghulam Abbas is not believed by the learned trial Court as whatever he stated was heard by him from complainant who did not state in his evidence that he narrated the facts to P.W. Ghulam Abbas. Another circumstance pointed out by the learned Advocate is that on the date of incident, deceased Yateem had to go to Sakran to attend the date of hearing of a case pending before Mukhtiarkar and F.C.M. Assuming that he took his co-villagers complainant Ali Hassan and Muhammad Ali to go with him to Sakrand, there was hardly any occasion for him to take these witnesses to his land for a round when admittedly his land was not on the way from his village to the Pucca road which led to Sakrand. It looks unusual that a person who has to go to a Court of Law to attend hearing, would follow a route, other than the one to be followed while going from the village to Sakrand. The learned Advocate has argued that if at all anybody inimical to deceased Yateem Khoso had determined to do away him, he or they would not go to the land of deceased but would wait at the road, knowing that the deceased would pass by that way for going to Sakrand. In support of all these contentions learned Advocate has referred the following judgments:--

(1) Abdul Ghafoor v. The State 1982 S C M R 162,

(2) Ahmad and other v. The State 1982 S C M R 1049,

(3) Rehmat and others v. The State P L D 1959 SC (Pak.) 109,

(4) Yousuaf v. The State P L D 1988 Kar. 521,

(5) Gahno and others v. The State P L D 1964 Kar. 437,

(6) Nawab and another v. The State 1979 P Cr. L J 736,

(7) Nawaz Ali and another v. The State 1981 S C M R 132,

(8) Abdul Haleem and another v. The State P L D 1982 Kar. 975, and

(9) Bagh Ali v. Muhammad Anwar and another 1983 S C M R 1292.

8. Mr. M. Sarwar Khan, Assistant Advocate-General Sindh, and Mr. S. Naqi Mirza, Advocate for complainant, have supported the conviction. It has been argued that 164, Cr.P.C. statements of P.W. Muhammad Ali and Ghulam Abbas have gone unchallenged and no question has been put by the defence during cross-examination. It is argued that the ocular testimony has been duly corroborated by medical evidence and no material contradiction is pointed out and because of some discrepancy in respect of seat of injury, it cannot be said that the deceased had not received second shot and it would be immaterial if the fire-arm injury was on the knee or thigh or the buttock. Reliance in this respect placed on Faiz Muhammad v. The State 1990 P Cr. L J 1243 where it was observed that the contradictions and variation of version of eye-witnesses who had no reason or enmity to implicate accused would be excuseable on account of long lapse of time. Reference is also made to the case of Abdul Rasheed v. Umid Ali and others P L D 1975 SC 227 where it was observed that the evidence of eye-witnesses cannot be discarded on the ground of some discrepancies between witnesses' trial statements and account given in F-I.R. Both the learned Advocates then referred to the case of Muhammad Ashraf etc. v. The State 1989 P Cr. L J 2211 where it was observed that eye-witnesses whose evidence does not suffer from any major or significant contradictions and is in consonance with probability of case can safely be relied upon without corroboration. Reliance is then placed on Khalil Ahmad alias Khalil and another v. The State 1975 S C M R 442 where it was observed that animosity though existing between the witnesses' father and accused, yet witnesses not personally involved in such-enmity so as to falsely charge accused for his father's murder and it was held that it was not reasonable to infer witnesses' having substituted accused for his father's murder. It is next argued that even if evidence of motive and recovery is excluded, the ocular evidence furnished by complainant Ali Hassan and Muhammad Ali was by itself sufficient to record conviction.

9. I have gone through the entire evidence and the impugned judgment. I would first discuss the case-law referred by appellants' learned Advocate. In the case of Abdul Ghafoor 1982 S C M R 162 it was observed that in a case where evidence of prosecution witnesses was held to be tainted and unbelievable by lower Court, in regard to acquitted accused, but appellant's case not distinguishable from the cases of acquitted accused, it was held that in the circumstances appellant was entitled to benefit of doubt and acquittal. In the case of Ahmad etc. 1982 S C M R 1049 it was observed that the testimony of witnesses having been found to be at variance in so far as they implicated accused, it was held that their testimony required independent corroboration and it was further held that the corroboration is to be looked for and found not only in case of interested witnesses but also where ocular testimony by itself not so sound and doubt free as to independently suffice for conviction of accused. In the case of Rehmat and others P L D 1959 SC (Pak.) 109 the accused were acquitted in a case where the Honourable Supreme Court found grave doubts effecting entire prosecution evidence, ocular evidence being subject to general doubts, conviction of accused relying on rule of "specific part" assigned to some of several accused by eye-witnesses, it was held that the same was not consistent with safe administration of justice and observed that High Court omitted to consider possibility of implication of innocent persons. In the case of Gahno and others P L D 1964 (W.P.) Kar. 437 it was observed that mere mention of names in F.I.R. does not constitute corroboration of ocular evidence against accused and basing conviction on such evidence without some corroboration is unsafe. In the case of Nawab and another 1979 P Cr. L J 736 where ocular testimony was inconsistent with medical evidence, identification of accused extremely doubtful, judicial confession discarded being irregular, it was held that motive for offence however, strong cannot provide corroboration to other pieces of evidence. The accused was given benefit of doubt and acquitted. In the case of Nawaz Ali and another 1981 S C M R 132 the eye-witnesses stated three shots having been fired by three appellants but five empties were recovered from the spot, distance of firing stated to have been five paces but 4 of 5 entrances of wounds having charring marks, testimony of witnesses was held doubtful in circumstances of the case. It was observed that the Supreme Court generally does not interfere with concurrent findings supported by evidence, but because both Courts below ignored all evidence going against prosecution case, concurrent findings were held vitiated. In the case of Abdul Haleem and another P L.D 1982 Kar. 975 a D.B. of this Court gave benefit of doubt and acquitted accused in a case where eye-witnesses were interested and inimical towards accused, testimony of such witnesses suffered from inherent weakness and improbabilities and remained uncorroborated, presence of eye-witness at spot of occurrence being doubtful, the evidence of recovery being unconvincing and evidence of motive found to be weak. In the case of Bagh Ali 1983 S C M R 1292 the Honourable Supreme Court while evaluating intransic worth of testimony of witness where Court is not satisfied that witness was telling truth, observed that question whether testimony of such witness required corroboration became wholly irrelevant as evidence of physical circumstances produced by prosecution by way of corroboration was held would not by itself be sufficient for conviction. It was further observed that where the version of witness being inconsistent with material fact and circumstances of unimpeachable character, the fact that such witness was not inimically disposed to accused, would be of no avail against the accused.

10. From the perusal of F.I.R. enmity between complainant Ali Hassan and deceased Yateem on one hand, and appellant Achar Machi, Guloo Kirrio and absconding accused Akbar Machi is established, as the land of Aslam Khanzada in Deh Telli was in occupation of-the accused who were ejected under orders of Deputy Commissioner and thereafter complainant party held possession thereof. Even proceedings under section 107, Cr.P.C. were pending between the parties. It was these proceedings for which it is stated that deceased Yateem Khoso was going to Sakrand to attend the hearing when he took complainant Ali Hassan and P.W. Muhammad with himself. It was on the way that instead of taking the road leading from the village of complainant to Sakrand, that deceased is stated to have asked Ali Hassan and Muhammad Ali to go with him to the land to take a round. If it be assumed that the appellants and acquitted accused had made preparation to do away with deceased Yateem, they would normally not have gone to the land of Yateem, but would have waited at the metalled road wherefrom deceased Yateem was to pass and were to go to Sakrand. The presence of the accused at the lands of deceased Yateem is not only unusual but unbelievable as well. The perusal of statement P.W. Muhammad Ali Khoso under section 164, Cr.P:C. (Exh.14) clearly indicates that one Bloch Khan was also with them when the incident took place. Even in the F.I.R. complainant Ali Hassan had stated that Baloch Khan was with him besides Muhammad Ali and Yateem, when they all went to take a round of Yateem's land. Not only that Baloch Khan is not examined but P.W. Muhammad Ali stated in his evidence that Baloch Khan was not with them. The evidence of complainant Ali Hassan in so far as instigation by acquitted accused Bahadur and Rasool Bux is concerned, the same is not believed by the learned trial Court as a result of which said accused are acquitted. To accept evidence of complainant Ali Hassan and Muhammad Ali in so far as it related to firing by appellants at deceased Yateem, it needed strong and independent corroboration, which is completely lacking. The learned trial Court has taken corroboration from medical evidence and motive. The medical evidence again is inconsistent with ocular testimony and when that be the situation, medical evidence cannot be said to have corroborated the ocular testimony. As argued by appellants' learned Advocate, the inconsistency in the medical evidence and ocular testimony is obvious, because the doctor certified the seat of injury on Yateem at his buttock, but the witnesses stated that the second shot fired at Yateem by appellant Achar hit him on his knee/thigh. The ocular evidence which is by itself discrepant and inconsistent, could not get support from medical evidence.

11. There has been misreading of evidence by the trial Court inasmuch as the facts which were available in evidence were not correctly reproduced. Complainant in the case is Ali Hassan and not Ghulam Hassan as mentioned in the impugned judgment. Similarly, the gun and rifle produced by Achar Machi were not sent for examination and report by ballistic expert yet it is mentioned that the same were sent to the ballistic expert. P.W. Ikramullah Investigating Officer did not remember, in fact, the number of cartridges recovered from the scene of Wardat but P.W. Ghulam Ali Mashir stated that only one .12 bore empty cartridge was recovered from the scene of offence. The Mashirnama of recovery Exh.18 shows the recovery of two empty cartridges from the Wardat. If the evidence of Mashir Ghulam Ali is believed, the only inference would be that because one empty shell was found from the Wardat, only one shot was fired at the deceased. In that case there could be no recovery of two empty shells from the Wardat. The Investigating Officer Ikramullah stated that he did not remember the number of empties recovered from the Wardat. The report of the ballistic expert, however, shows that five empties of .12 bore gun were sent to him for examination and report. Wherefrom these five crime empties were secured, is unknown. The anomaly has gone unresolved which leads to a confusion as to how many shots were fired at the deceased and by whom.

12. The perusal of the sketch prepared by the Tapadar on 5-1-1993 i.e. after about 7 years of occurrence does not even show the place where the accused were standing and the distance from which they fired at the deceased. Such an important point has skipped the notice of the learned trial Court. The Wardat was shown to Tapadar by complainant Ali Hassan but in my view the Tapadar has not visited the Wardat and has prepared the sketch sitting somewhere else and mentioning the points under dictates of complainant.

13. Evidence of P.W.3 Ghulam Abbas is rightly discarded by the learned trial Court, as, what he stated was hearsay and not seen or, observed by him. P.W. Muhammad Ali and Mashir Ghulam Ali Khoso are both caste-fellow of complainant Ali Hassan. Although arrest of appellants was effected long after the incident, the police associated the same Mashirs for the arrest of the accused, recovery of weapons preparation of memo of Wardat etc. Association of independent witnesses of the locality is always insisted upon and strong reasons were required to make a departure from the established rule.

14. The evidence of complainant Ali Hassan and P.W. Muhammad Ali which is disbelieved in respect of acquitted accused was not free from taint and malice and it has nest been corroborated by independent evidence. The medical evidence in some respects is inconsistent with the ocular testimony. The recovery of crime empties from the Wardat is doubtful. It seems that deceased Yateem was done to death by someone during late hours of the night and because the incident was un-witnessed, the complainant on the basis of admitted enmity between the parties, roped in maximum number of his rivals. The post-mortem report shows the stomach of the deceased Yateem being empty meaning thereby that he left for Sakrand without taking breakfast, which is unusual in the rural areas. The deceased was murdered at some time before sunrise and nobody witnessed the incident.

15. As a result of above discussion I am of the considered view that case against appellants was not proved beyond all reasonable doubt. While giving benefit of doubt to the appellants I accept this appeal, set aside the conviction and sentence and acquit the appellants. They shall be released forthwith unless required in some other case.

16. N.H.Q./G-371/K

17. Appeal accepted.