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Criminal Appeal No. 218‑A of 1967, decided on 1st November 1967.

, S. 302‑Murder‑Witness Prosecution witnesses related inter se and also to accused Evidence of such witnesses July supported by circumstantial evidence and establishing guilt of accused beyond doubt‑‑‑Conviction of accused by Sessions Judge under S. 304‑A instead of S. 302, held, without any basis.

, S. 423‑Accused chcuged and tried for offences under Ss. 302 & 307, P. P. C. but Sessions Judge recording conviction under S. 304‑A and acquitting accused under Ss. 302 & 304‑Evidence on record establishing guilt of accused under S. 302, P. P. C. beyond doubt‑Judgment of Sessions Judge not supported by law or facts‑ Deprecated‑No appeal against acquittal of accused under S. 302, P. P. C. filed by prosecution‑‑Court, held, in circumstances, left with no option bill only to dismiss appeal.

Azizullah K. Shaikh for Appellant.

Manzoor Hussain for the State.

Date of hearing: 1^st November 1967.

The appellant Hadi Bux had been sent up for trial under sections 31)2 and 307, P. P. C. and 13 (d) of the Arms Ordinance, He was, however, convicted by the Additional Sessions Judge, Nawabshah, under section 304‑A, P. P. C. and 13(d) of the Arms Ordinance and sentenced to suffer rigorous imprisonment for two years and one year. The sentences have been ordered to run concurrently. He has filed this appeal.

2. 7‑he facts of the prosecution case briefly are that the appellant Hadi Bux was promised Mst. Marvi, sister of deceased Hidayat Ali and Niaz Ali in marriage. He was to give his sister Mst. Sihat in return in marriage to Ishaq, the uncle of the deceased. Somehow this agreement between the parties could not be implemented. The relationship between the parties therefore became strained. Some time before the incident, Hadi Bux went to the house of Allahdino and other where Rasul Bux and several other people were sitting. They told the appellant as to why he had gone to their house although he had been prevented several times before that. They also called upon him to go away. The appellant felt annoyed and told them that he would reak vengeance on them within a day or two. On the 8th of April 1966, there was some feast in the house of Mehro Wassan. Both the parties were invited to this feast The deceased Hidayat Ali and Niaz Ali, children of about 12 years of age and injured Suleman, Sain Bux, Jamal and Allahditto and others were present, They were busy eating food. The appellant came there armed with a gun which stood in the licence of his brother Sikki Ladho and fired a shot which hit Hidayat Ali, Niaz Ali, Suleman, Sain Bux, Jamal and Allahditto. Hidayat Ali and Niaz Ali succumbed to the injuries received by them whereas the remaining four survived. The persons sitting there saw the appellant standing there with a gun in his hand. They caught him and wrested the gun out of his hands. Rasul Bux thereafter went to the Police Station at Daur and lodged his first information report Exh. 20 at 11 a.m. on the same day, the incident having occurred at 10 a.m.

3. The police during the course of investigation visited the scene of offence and secured one empty cartridge Art. C from there. Mashirnama Exh. 12 was prepared. The appellant was arrested for which Mashirnama Exh. 18 was made. The gun secured from the possession of the appellant was also produced before the police and it was secured under Mashirnama Exb. 13. The licence was also produced by Sikki Ladho, which was secured under Mashirnama Exh. 14. This licence indicated that the gun stood in his name. The evidence of the witnesses was also recorded. After the usual investigation was completed, the appellant was challaned.

4. The appellant, when questioned, denied the allegations made against him. The plea taken by him before the Sessions Court was that the gun which stood in the name of his brother Sikki Ladho was lying loaded in front of them and as the children sitting there were playing there it accidentally got fired with the result that the deceased and the injured persons were hit, He has examined nil witness in defence.

5. The question whether Hidayat Ali, Niaz Ali, Suleman, Sain Bux, Jamal and Allahditto sustained injuries and the question whether Hidayat Ali and Niaz Ali died on account of the injuries received by them is not disputed. In fact, it is admitted by the appellant himself. The evidence of Dr. Shamsuddin Exh. 29 and the evidence of the witnesses also establishes this issue beyond doubt.

6. The only question, therefore, that needs to be determined is whether the appellant was guilty of the offence with which he was charged. The prosecution for the purpose of proving their case have relied upon the evidence of Rasul Bux P. W. 5. Allahdino P. W. 6 and Saifal P. W. 7. All these three witnesses have unanimously stated that they had a dispute with the appel lant because the agreement in respect of exchange of Mst. Marvi and Mst. Sihat had not been implemented. They have also stated that the appellant on being prevented from going to the house of Rasul Bux some time before the date of the incident had meted out threats to them. They also stated that on the day of the incident the appellant came at the scene of offence and fired his gun which resulted in the death of Hidayat Ali and Niaz Ali. It also resulted in injuries to Suleman, Sain Bux, Jamal and Allahditto. The evidence of Rasul Bux P. W. 5 is quite explicit on this. He has not even been cross‑examined on any of the allegations made by the prosecution. The evidence of the other two witnesses, however, is that they did not see the appellant actually firing because they were busy taking food hit on the hear ing of gun-report they found the appellant standing there armed with a gun. and the six persons lying on the ground with injuries on their persons. All these witnesses have also unanimously stated that they caught the appellant and snatched the gun from his hands. It is true that these witnesses are related inter se but it is also true that they are closely related to Hadi Bux appellant also. The evidence of these witnesses has not been challenged on any of the points in issue. The ‑3se of the appellant that the gun was accidentally fired has not so much as even been put to any of the prosecution witnesses. The evidence of these witnesses also, receives support from the fact that the appellant was caught on the spot and gun was secured from him for which Mashirnamas Exhs. 18 and 13 were prepared by the police in the presence of l Mashir Imam Din P. W. 4. The evidence also stands fortified by the fact that appellant in order to wreak vengeance on Rasul Bux and others took the gun of his brother and after loading it brought it to the scene of offence and fired a shot from it. The evidence of these witnesses also stands supported from the fact that empty cartridge Art. C secured from the scene of offence under Mashirnama Exh. 12 was certified by the Ballistic Expert Shahjehan P. W. 2 to have been fired from the gun wrested out of the hands of the appellant. All this t evidence establishes beyond doubt that the appellant was guilty if any of having committed the intentional murders of Hidayat Ali and Niaz Ali and had caused injuries to Suleman. Sain Bux, Jamal and Allahditto making himself liable for offences under sections 302 and 307, P. P. C. The learned Additional Sessions Judge has given very flimsy grounds; in fact no grounds at ail have been given for reducing this offence from 302 to 304‑A. P: P. C. What I have not been able to understand is as to how the appellant can be liable under section 304‑A, P. P. C. In view of the finding given by the learned Judge that there was a previous strained relationship between the appellant and the deceased and in view of the finding given by him that the appellant was armed with a gun not in his licence at the time off the incident, there can be no escape from the conclusion that the gun was used by him and a shot was fired by him. On this view of the matter, there can be no escape from the conclusion that the appellant had come determined to wreak vengeance on Rasul Bux and others and commit intentional murders of two innocent boys. The learned Judge has given a judgment which cannot be supported by law or by facts. The judgment, in my opinion, is absolutely unbecoming of the Judge who wrote it and I am of the view that this judgment was given after a great effort to circumvent law and give benefit to the appellant. Even the prosecution seem to have failed in their duty in not taking up the matter in appeal under section 417, Cr. P. C. against the acquittal of the appellant under section 302, P. P. C. They seem to have also been persuaded by the learned Judge not to do so. As no appeal against acquittal has been filed, I have no option but only to dismiss this appeal. It is for the prosecution to consider whether an appeal should or should not be filed because the judgment of acquittal of the appellant under section 302, P. P. C. was recorded on 30th of June 1967 and the appeal, if filed, would still be in time. The appeal filed by the appellant, in these circumstances, stands dismissed.

appeal dismissed.

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