AMIR BAKHSH Versus STATE
1. The appellants Khandoo alias Khawand Bux, Mumtaz alias Allah Warrayo, Jawed, Saifal and Imdad were tried by the learned IInd Additional Sessions Judge, Khairpur who by his judgment, dated 6-6-1989 convicted all the appellants under section 304/149, P.P.C. and sentenced each of them to undergo imprisonment for life and fine of Rs.5,000 or in default of payment of fine to undergo R.I. for 1 year more. They were also convicted under section 353, P.P.C. and sentenced to R.I. for 2 years. Each of them were also ordered to pay compensation of Rs5,000 to the legal heirs of deceased Imam Bux or in default thereof to undergo R.I. for 6 months more. By the same judgment accused Esso son of Haji Soomar was acquitted. The appellants have challenged their said conviction and sentence under this appeal.
2. Case of the prosecution is that H.C. Allah Bux lodged report at Police Station Tando Masti Khan on 8-2-1987 in which he stated that on the same date he alongwith his subordinate staff left the police station for patrolling in Government vehicle. When they reached Mehar Shah Mohallah at 2200 hours, they heard fire-arm reports from the said Mohallah. They immediately rushed to the spot and on street light they saw eight armed dacoits namely Imdad, Esso, Sikander, Khandoo and four unidentified persons. They all were standing in front of the shop and house of Illahi Bux and were firing. On seeing the complainant party, they started firing on the police. In return, the police party also took position and started firing. This encounter continued for about 15 minutes, but due to darkness, the accused persons managed to run away. On their return, they found that on account of firing by dacoits, one shot pierced the door and hit Imam Bux who expired.. The dacoits also kidnapped Ellahi Bux and also took away his household articles. The complainant informed his officers and then lodged report.
3. Th report of the complainant was recorded by S.H.O. Gul Muhammad as Exh.24, he proceeded to the place of Wardat alongwith the complainant where he found the dead body of Imam Bux. He prepared memo of Wardat Exh.20 under which he also secured empties of various weapons. He also recorded the statements of police constables who were with the complainant. On 3-5-1987, he arrested accused Sikander and Esso under memo. Exh.22. On 15-4-1987 he recorded the statement of Ellahi Bux after he was released by the dacoits. As the S.H.O. Girl Muhammad was transferred, the investigation was taken up by another S.H.O. Sahib Shah. On 9-8-1987, he arrested accused Khandoo, Mumtaz, Jawed and Saifal who were already in custody of Police Station Town Khairpur. On 10-8-1987, he produced the accused and the witnesses before Assistant Mukhtarkar and F.C.M. Kotdiji for identification of the accused. Thereafter, he challaned the accused.
4. At the trial, the prosecution examined 13 witnesses which included eye-witnesses namely complainant Allah BUY, Constable Abdul Hakim, Khadim Hussain, Constable Mushtaque, Constable Khan Muhammad and Constable Ikhtiar Hussain. Thereafter, the statements of the appellants were recorded under section 342, Cr.P.C. All of them denied the allegations and claimed that they have been implicated in this case as there is dispute with people of Nareja community. Except for appellants Khandoo, and Saifal, none of the appellants wished to be examined on oath. None of them wanted to examine any witness in their defence. At the conclusion of the trial, all the appellants were convicted and sentenced as already described, while accused Esso was acquitted.
5. I have heard Mr. Muhammad Daud Baluch learned counsel for the appellants and so also Mr. Abdul Sattar Chohan counsel for the State. With the assistance of the learned counsel, I have gone through the entire evidence on record and I have noted that the conviction of the appellants has been recorded on ocular evidence, medical evidence and circumstantial evidence. I will now consider the worth of the said pieces of evidence.
6. The ocular account of the incident is furnished by P.W. Allah Bux, P.W. Abdul Hakim, P.W. Khadim Hussain, P.W. Mushtaque, P.W. Khan Muhammad and P.W. Akhtiar Hussain. The medical evidence is furnished by Dr. Rahim Bakhsh who conducted the post-mortem examination of deceased Imam Bux while the circumstantial evidence is of test identification parade conducted by Assistant Mukhtarkar Muhammad Suleman.
7. It may be mentioned that the appellants were charged for offences under sections 302/149, 307/149, 353/149, 365/149 and section 20 of the Offences Against Property (E.O.H.) Order, 1979 and 13-D of the Arms Ordinance, 1965. Out of the said offences, the appellants have been convicted under sections 304/141, P.P.C. and 353, P.P.C. As such, for all the other offences, the appellants have been acquitted. The learned trial Judge has recorded the conviction of the appellants under section 304/149, P.P.C. as he was of the view that the appellants in furtherance of their common object have committed the murder of deceased Imam Bux. The conviction under section 353 was on the basis of the fact that the appellants fired on the police party in order to deter them in the discharge of their official duties.
8. It may be noted that all the eye-witnesses in this case are police constables. The only other witness of incident is a private person Illahi Bux, he has not implicated any of the accused while deposing in Court. Though the incident has taken place in a village, yet no other person has been examined in this case, nor any explanation has been given for non-examination of the villagers. However, the learned trial Judge has come to the conclusion that the six eye-witnesses who are all police constables, have fully supported the prosecution case which stands established against all of them except accused Esso, to the extent that they committed the murder of Imam Bux by causing him fire-arm injuries and by firing on the police party to deter them from discharging their duties.
9. So far as the murder of Imam Bux is concerned, the finding of the learned Trial Judge that the appellants were responsible for the same is based on total misreading of the evidence on record. There is no direct evidence on record to show that deceased Imam Bux had either met the appellants or that the appellants shot at Imam Bux. The six eye-witnesses examined in this case have not deposed to the fact that they saw any of the appellants shooting at or killing Imam Bux. In fact all the eye-witnesses have stated that on hearing fire arm reports, they reached the spot where they found the eight accused in the street who fired on the police party and then escaped from the spot. The police party followed them but none could be apprehended. They returned back to the spot when they came to know that the guest room door of the house of Imam Bux which opens in the street had a bullet hole and inside that room, a stray bullet after piercing the door struck Imam Bux which resulted in his death. It may be mentioned that two of the eye-witnesses namely P.W. Abdul Hakim and P.W. Mushtaque have clearly stated that after chasing the accused persons, they returned back to the Wardat where "people told them that Imam Bux had died as a result of bullet injury". This will go to show that at the time of chasing the accused, the witnesses were not even aware that Imam Bux had received a bullet injury. It is quite possible that in the cross-firing between the police and the accused, a stray bullet may have pierced the door and struck Imam Bux which resulted in his death. This certainly does not lead to the conclusion that the accused committed the murder of Imam Bux by causing him fire-arm injuries as held by the trial Court. One cannot lose sight of the fact that the accused were positioned between the house of Imam Bux behind them and. the police party in front of them. The police party had fired on the accused but no one from the side of accused was injured. Possibility cannot be ruled out that a stray bullet fired by the police may have pierced the door and hit Imam Bux resulting in his death. Another surprising aspect is that no one from the house of Imam Bux raised any voice or complained about the murder of Imam Bux. Nor the Investigating Officer examined any of the relatives of the deceased, though he has admitted to have met them. In these circumstances, the finding of the trial Judge that the appellants committed the murder of Imam Bux is not sustainable.
10. The learned counsel for the appellants has rightly argued that even if the six eye-witnesses are believed, their evidence at the most will establish who were the accused who took part in the encounter with the police and not the murder of Imam Bux Similarly if the evidence of test identification parade is relied upon, that too will show that the witness could identify the accused who fired at the police and not the murder of Imam Bux However, the learned trial Judge has acquitted all the accused of the charge under section 307/149, P.P.C. by disbelieving the alleged encounter between the police and the appellants. The learned Judge was of the view that the intention of the accused was not to cause the death of any of the police party, but rather the accused fired for the purpose of saving their own skin in order to escape from the Wardat.
11. So far as the conviction of the appellants under section 353/149 is concerned, there is evidence on record to show that the accused persons did resort to firing, and even if it was for the purpose of saving their own skin, then too, the appellants did deter the police party from discharging their duty. As such the conviction and sentence of the appellants for the offence under section 353/149, P.P.C. was rightly recorded by the trial Court.
12. In the above circumstnces, the position which emerges is that the conviction and sentence of the appellants for the offence under section 304/149, P.P.C. is hereby set aside while that under section 353/149, P.P.C. is maintained. As, the appellants have already remained in custody for over two years, they shall be deemed to have already undergone their sentence. The appellants are on bail, their bail bonds are discharged. This appeal is partly allowed in the above terms.
13. N.H.Q./K-334/K Order accordingly.