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Criminal Acquittal Appeal No. 20 of 1967 decided on 22nd December 1967.
Ss. 417 & 423 --Appeal against acquittal‑Accused charged with offence under S. 302, P. P. C. but acquitted by trial Court‑--Evidence of eye -witnesses found to be supported by disinterested witness, recovery of empty shells and firearms, report of Ballistic Expert and medical evidence‑Criticism by trial Court of such evidence altogether misconceived and unwarranted Appeal accepted.
S. 302‑Murder‑Sentence--- Occurrence taking place two years earlier and accused acquitted by trial Court on basis of misconceived and unwarranted criticism of evidence‑Awarding of extreme penalty, in appeal against acquittal, held, not proper, in circumstances of case‑Accused sentenced to transportation for life.
Manzoor Hussain, A.A. for G. for the State.
M. H. Junejo for Respondents.
Date of hearing: 12th December 1967.
Juman, his brother Amir Bux and their cousin Gulab, Kirir and Jaffer were tried under sections 147, 148 and 302/149, P. P. C. for having committed the offence of rioting and for having committed the murder of Shafi Muhammad deceased in prosecution of the common object of the unlawful Assembly formed by them on 17th of October 1965 in Deb Mothri, Taluka Johi. Accused Juman, Amir Bux and Gulab were also tried under section 13‑D of West Pakistan Arms Ordinance, 1965. As a result of the trial Mr. Ghulam Hassan A. Shaikh, Sessions Judge, Dadu acquitted all the accused of all the charges, by his order dated 14‑7‑1966. The State has come up in Appeal against the acquittal of the above‑mentioned accused of the charges under sections 147, 148 and 302/149, P. P, C. Earlier a revision petition under section. 439 against the acquittal of the accused was filed by Mst. Hussain Bibi. This judgment will dispose of the Acquittal Appeal No, 20/6,7 and the Criminal Revision No. 211/66.
2. Prosecution case briefly is that on 17th of October 1965 half a pahasr after sun‑rise Shafi Muhammad deceased was sitting with his mother Mst. Hussain Bibi (P. W. 4) in their house in village Deh Mothri, Taluka Johi when Laung (P. W. 5) came up to the house and called out Shafi Muhammad deceased as he wanted to obtain seeds from the latter. Shafi Muhammad deceased took Laung P. W., to his otak nearby towards the south of his house asking his mother to prepare breakfast for them. While Laung and Shah deceased were sitting in the otak. Lal Khan (P. W. 3) who has his house at a distance of half a call from the house of the deceased came up to the otak and coined Shafi deceased and Laung P. W. in their chat Lal Khan had a round of the watercourse irrigating his land and it was in, the course of the supervision of the flow of the water that he had reached near the otak of Shafi Muhammad deceased and finding him sitting with Laung P. W., had conic along to join them. While the above‑mentioned three persons were engaged: in conversation Shafi deceased was called to his house by his mother Mst. Hussain Bibi P. W. for taking the meal which had become ready. Soon after Shafi deceased left his otak and had covered a distance of 30 or 35 paces between the otak and the entrance of his house, when all the 5 accused emerged from the sugar‑cane field on the north, Juman armed with a rifle, Amir Bux armed with a double‑barrel gun and Gulab and Jaffer armed with single‑barrel guns and Kirir with a hatchet and challenged the deceased not to proceed any further. Mst. Hussain Bibi (P. W. 4) implored them riot to kill Shafi Muhammad and in the meantime Laung and Lal Khan P. W. came out from the otak. The accused party threatened them not to come near and to the accompaniment of challenges the members of the accused party who were armed with fire-arm started firing at the deceased. The deceased fell down near the entrance of his house. Kirir accused thereafter came up near Shall Muhammad deceased and gave him two or three hatchet blows. Thereafter the accused party departed from the scene of the crime raising slogans and went away towards the east. Soon after Shafi Muhammad (P. W. 6) who was working on his land nearby arrived at the spot attracted by the fire -arm reports. On his way to the spot he saw the 5 accused armed with different weapons mentioned above coming from the opposite direction, On reaching the spot he saw Mst. Hussain Bibi, Laung and Lal Khan P. Ws, already present there and Shafi Muhammad lying dead on the ground with gun‑shot injuries and hatchet injuries on his body. The above‑mentioned eye‑witnesses of the occurrence told him what they had seen of the occurrence and he in turn informed them that he had seen the 5 accused running away Lal Khan (P. W. 3) thereafter sent away to the Police station for lodging the report leaving behind the above‑mentioned eye‑witnesses near the dead body of the deceased. Lal Khan lodged the report Exh. 9 at Police Station Phulji Out Post, which is three miles froth the place of the occurrence, on the same day viz. 17‑10‑1965 at 1 ‑00 a.m which was recorded by Muhammad Bux H, C. (P. Ws 8). After recording the F. I. R. Muhammad Bux H, C. accompanied Lal Khan to the spot and found the dead body of Shaft deceased lying near the entrance inside the house with hatchet and fire‑arm injuries on his body. The Head Constable collected blood‑stained earth from the spot and sealed it into a parcel and secured 4 empty cartridges and one empty bullet from the Vardat. They were lying about 6/7 paces away from the dead body, He sealed them into a parcel. He also prepared the Mashirnama of the Vardaat which was attested by Shafi Muhammad son of Allah Dad (P. W 7). The Head Constable sent away the dead body to Medical Officer Johi for its post- mortem examination with Shafi Muhammad constable, and when S. H. O, Ali Nawaz (P. W. 9) arrived at the spot at about 12‑00 noon he made over the investigation to his officer. The S. H. O. verified the investigation of Head Constable Muhammad Bux and recorded the statements of Laung, Shafi Muhammad and Mst. Hussain Bibi P. Ws. The accused were not traceable in the village on that day and the S. H. O. arrested Juman, Amiro, Gulab and Kirir accused from their village on 18‑10‑1965 in the presence of Mashir Shafi Muhammad P. W., and Chhuttal vide Mashirnama Exh. 18. When interrogated, Juman accused led the S. H. O. to the paddy cultivation in front of his house and from its eastern side produced a 303 bore rifle No. 5643 which lay concealed inside the cultivation. There were two bullets in the magazine of the rifle and the S. H. O. took the rifle and the bullets into his possession. Amir accused led Ali Nawaz S. H. O. to the paddy wall in his dera and from there produced the double‑barrel gun No. 80286 with 4 live cart ridges from the heap of the paddy where it lay concealed and the Sub‑Inspector took the gun and the cartridges into his possession and sealed them into a parcel vide Mashirnama Exh. 23. Gulab accused led the S. H. O. to a heap of manure in front of his house and from there produced a 16 bore country made shot‑gun with the two 16 bore live cartridges. The S. H. O. took these into his possession vide Mashirnama Exh. 21 and sealed them into a parcel. Kirir accused led the S. H. O. to his house and from the thatched roof thereof produced a blood-stained hatchet which the S. H. O. took into his possession and sealed into a parcel vide Mashirnama Exh. 22. All these Mashirnama were prepared in the presence of Shafi Muhammad P. W. Mashir and Chhuttal. Jaffar accused appeared before the Sub‑Inspector at the Police Station Johi on 20‑10‑1965 and produced a 12 bore single‑barrel gun No. 2398/SG along with one live cartridge and the Police officer took these into his possession and sealed them into a parcel vide Mashirnama Exh. 24 which was also attested by Shafi Muhammad Manshir P. W. and Ghhuttal. The Sub‑Inspector arrested Jaffar accused. The above mentioned fire‑arms were later sent by the S. H. O. to the Ballistic Expert, Lahore and the hatchet to the Chemical Analyser. The empty shells that had been collected from the spot by Muhammad Bux H. C. were also sent to the Ballistic Expert. Khan Shah, Examiner of Fire‑arms (P. W. 10) examined the fire‑arms and expressed the opinion that crime empty C‑1 had been fired from the 12 bore single‑barrel shot‑gun bearing No. 3298/M and 12 bore crime empty marked C‑2 had been fired from the left barrel of 12 bore double- barrel shot‑gun No. 80286 and crime empties 3‑C and C‑4 had not been fired from 12 bore double‑barrel shot‑gun or single‑barrel shot‑guns and that the empty of 303 rifle bullets namely C‑5 had been fired from rifle No. 5645. The Chemical Analyser to whom the hatchet and blood‑stained earth collected from the spot had been sent reported that both the articles were stained with human blood.
3. Dr. Inam‑ul‑Haq, Medical Officer, Johi who performed the post‑mortem examination on the dead body of Shafi deceased, after he had been identified by Muhammad Yusuf son of Muhammad Ali, from 9‑00 a.m. to 10‑25 a.m. on 18‑10‑1965 found the following:‑
(1). Two penetrating wounds bigger than pea size '' x '' over right side of face causing fracture of the maxillary bone.
(2) One wound of exit '' above right temple '' x '' over temporal region.
(3) One penetrating wound behind right ear mid portion.
(4) Lacerated wound 1/6'' x 1/6'' margins tattooed, in front of right ear. From right ear blood stained fluid coming out.
(5) Lacerated wound 1 " x 2'' x skin deep over right angle of mandibular region.
(6) Two lacerations small behind injury No. 5 over upper and right side of neck.
(7) One penetrating wound 2" above right ear fracturing right temporal bone.
(8) Incised wound 3" x 1 " x 1 '' cutting the under‑lying maxillary bone and canine first premolar and second premolar teeth through and through.
(9) Three penetrating wounds, margin tattooed, oval shaped bigger than pea size over right shoulder in front.
(10) Three exit wounds upper and posterior aspect of the right shoulder.
(11) Six penetrating wounds over anterior medical aspect of the right arm, margins of the wound tattooed, bigger than pea size and humerus bone fractured into pieces, pellets removed.
(12) Lacerated wound 1 '' x 1 " x muscle deep, front portion of skin of the thinner eminence absent.
(13) Lacerated wound 1/8" x 1/6" tip of right hand ventral aspect.
(14) Lacerated wound " x " over posterior aspect of tip of right finger.
(15) One penetrating wound 1 " x " above the left clavicle over left aspect of neck in front.
(16) Two lacerations 2 " x " just above injury No. 15.
(17) Incised wound over dorsal aspect of little ring and middle finger, fracturing bones, middle finger missing.
(18) Seven penetrating wounds over abdomen and lower and front portion of chest two pellets were removed from abdominal wall of large size.
(19) Six lacerations of skin over right side and in front of chest wall.
(20) One wound of exit 1 " x 1" over right abdominal wall close line alba 1" away from umblicus, downwards and outwards.
(21) One penetrating wound about superio, border of right scapula bigger than pea size and made exit and going under the skin 2" and lacerated the skin 5" x 1" over back of right chest wall.
(22) One penetrating wound over left lumber region.
(23) One penetrating wound on lower left back of chest wall close to 12th rib.
(24) One penetrating wound on lower ‑left back of chest wall close to eleventh rib.
(25) One penetrating wound at mid portion of the right scapula.
(26) One penetrating wound close to inferior angle of right scapula.
The doctor expressed the opinion that injuries Nos. 1‑--26 except injuries Nos. 8 and 17 appeared to have been caused by discharge of a fire‑arm like gun and injuries Nos. 8 and 17 by a sharp cutting weapon such as hatchet and further opined that while other injuries were ante‑mortem in nature, injuries Nos. 8 and 17 appeared to be post‑mortem.
On internal examination the doctor found the following:
Right Lung was lacerated and left Lung was pale. Free blood was found in abdominal cavity. Stomach was punctured through and through and it was ecchymosed and punctured. Liver was lacerated and pale. Cork of one paisa size was found inside it and was removed. And on the basis of his exami nation external and internal he expressed the opinion that the deceased had died on account of shock and haemorrhage as a result of injuries sustained by him, and that the probable time between injuries and death was within half an hour and time between death and post‑mortem was about 24 hours. The external injuries Nos. 1, 3, 21, 18, 25 and 11 according to the doctor were sufficient to cause death in the ordinary course of nature. He further opined that the probable range of the discharge of fire‑arms was about more than 6 feet and expressed his inability to give the correct distance. He further stated that all the fire‑arm injuries could be caused by a 12 bore gun.
4. The accused pleaded not guilty and denied all the allegations of the prosecution. They denied that they had anything to do with the death of Shafi Muhammad deceased or that they had participated in the occurrence in any manner. They with the exception of Jafar accused further denied that the weapons that were being described as having been recovered from them had actually been recovered from them. They ascribed their implication in the case to the enmity of P. Ws. When they were asked why Lal Khan and Mst. Hussain Bibi had deposed against them they made a statement to the effect that they were interested inter se and hostile to them. When asked why Shafi Muhammad, P. W. 6) had deposed that he saw them running away while armed with their weapons, they described Shaft as being a relation of the deceased and his hart. They also described Shafi Muhammad (P. W. 7) the Mashir of the Vardaat as a relation of the deceased. Except Jaffer accused no body admitted that he produced any weapon before the investigating officer. Jaffer admitted that he had produced a gun before the investigating officer but added that it was his licensed gun. None of the accused produced any evidence in his defence.
5. It is evident from the above narrative that the prosecu tion has relied in its case against the accused persons on the ocular testimony of Lal Khan, Mst. Hussain Bibi and Laung P. Ws. the corroborative statement of Shafi Muhammad (P. W. 6), the evidence regarding the recovery of empty cartridges from the spot and of different weapons at the instance of the accused and the medical evidence besides the evidence regarding the motive.
6. That Gul Hassan, a brother of Juman and Amir Bux accused was killed three months before the present occurrence, his dead body having been found from the field of Bashir, a brother of Shafi deceased, and Bashir along with some of his other relatives was prosecuted for the murder of Gul Hasan is not disputed. This circumstance not only finds mention in the statement of Mst. Hussain Bibi, this is admitted even by Juman and Amir Bux accused in their respective statements although they have described that circumstance as the reason for their gratituous implication in this case. Also, there can be no manner of doubt that the deceased was murdered. According to the medical evidence the dead body of the deceased bore 26 injuries out of which only two had been caused by a sharp‑edged weapon and were post‑mortem and the rest were ante‑mortem gun‑shot injuries. The dead body of the deceased was found by the investigating officer lying a little inside rite entrance of the house of Shafi deceased and Muhammad Bux H. C. collected blood‑stained earth from this place. All these circumstance show that the deceased was murdered. The question of prune importance in this case is whether or not the three persons who claimed to have seen the accused party making an assault on the deceased with their respective fire‑arms and a hatchet were actual eye‑witnesses of the occurrence car not. The learned Sessions Judge has come to the conclusion that they were not actual eye‑witnesses of the occurrence and has, therefore, finding the case not established against the accused persons acquitted them of all the charges. We have gone through the evidence in the case and find ourselves in disagreement with the learned Sessions Judge in his assessment of the prosecution evidence. We find no good ground for holding that Mst. Hussain Bibi, Lal Khan and Laung P. W5. had not actually witnessed the occurrence. It is not contested by the defence that the occurrence took place half a pahar after sun‑rise and the deceased was killed when he was attacked by tire‑arms when he was near the entrance of his house. We fail to understand why in these circumstances Mst. Hussain Bibi P. W. cannot be accepted as a natural eye‑witness of the occurrence. There is nothing on the record to suggest that the entrance of the house was a door of small width. The numerous lire‑arm injuries on the body of the deceased indicate that they were the result of several fire‑arm shots. Mst. Hussain Bibi is undoubtedly an inmate of the house and if the fire‑arm assault was made at about breakfast time as alleged by the prosecution she would be present in the house and even if she were not looking outside through the entrance before the fire‑arm assault, on hearing the first fire‑arm report would have felt curious enough to come near the entrance and see what the matter was and who the assailants were. The accused lived only at a distance of half a call from the house of the deceased and it is not contended that they were not known to Mst. Hussain Bibi, Nor is there apparently any reason why Laung and Lal P. Ws. be considered as not having seen the occurrence. There is nothing improbable about Lal Khan having gone to the otak of Shall deceased at the end of a round of the watercourse and having sat with Shall Muhammad in the otak; nor is there any thing improbable about Laung P. W. having come to Shafi deceased and called him and accompanied him to the otak in the circumstances described by Mst. Hussain Bibi and Laung P. Ws. All the above‑mentioned three eye‑witnesses of the occurrence were mentioned in the F. I. R. which was lodged at the Police station which is 3 miles distant from the place of the occurrence within an hour of the occurrence. Furthermore, after their arrest the different accused led to recovery of different fire‑arms and a hatchet. Some of the empty shells recovered from near the place where the dead body of the deceased lay were found by Khan Shah, Fire‑arms Expert (P. W. 10) to have beers discharged through some of the shot‑guns recovered.
7. For discarding the evidence of Mst. Hussain Bibi the learned Sessions Judge took into account the following main circumstances:‑
(1) In case Mat. Hussain Bibi was sitting at point D shown' in the site plan prepared by Tapedar, (Exh. 6) she would not have been able to see the assailants when they emerged from the cane cultivation.
(2) That Mst. Hussain Bibi could not have been able to sec from point D (the thala) the persons sitting in the otak as the, portion of the otak on its north, that Is, to the south of the, house of the deceased was not open and that she could not have seen the deceased coming out of the otak before he was, attacked.
(3) If as is alleged by Mst. Hussain Bibi she was at it distance of 10 or 15 paces away from the deceased at the time of assault she should also have received some gun‑shot injuries.
(4) Since in the opening sentence of her examination in chief she had stated that she and Shall Muhammad were sitting in their house before Shall was called out she had meant that she was sitting inside the residential portion of her house and where she further stated that, she was sitting on the thala which is the other portion of the house, she had indulged in a falsehood.
8. The learned Sessions Judge has also noticed some discrepancies in the statements of mss: Hussain Bibi made by her at different stages. We see no force in any oaf the reasons given by the learned Sessions Judge for discarding Mst. Hussain Bibi P. W.'s evidence. The learned Sessions Judge seem, to us to have attached unnecessary importance to the, different points shown in a site plan prepared many months after the occurrence with reference to the statement of Mst. Hussain Bibi. We have carefully gone through the evidence of Mst. Hussain Bibi and we find that she had not at all stated that she had seen the accused emerge from the sugar‑cane field while she was yet, sitting on the thala. She has, of course, stated that she way, sitting on the platform with Shall Muhammad before he was called out by Laung P. W. and she has also no doubt mentioned that she could see the deceased and his companions in the otak from where she sat. But she does not further state that when the accused emerged from the sugar‑cane field, she was yet sitting on the thala. For it appears to us that for satisfying herself that the breakfast meal was ready she must have left the thala and gone to the residential portion of the house and thereafter come back for the purpose of calling Shafi to come and take away the meal. Since no specific question was put to Mst. Hussain Bibi as to whether she was standing or sitting when she saw the accused emerging from the cultivation, it appears to us to be unfair to ascribe to lie: "he statement that she had seen them accused emerge from the sugar‑cane cultivation while she sat on the thala.
9. We do not consider it difficult to believe Mst. Hussain Bibi in her statement that from the thala she could see Lal Khan and Laung P. Ws. sitting in the otak. The site plan Exh. 6 shows that this otak is towards the south of the house of Shafi deceased at a distance of about 113 feet: There is nothing on the record to show that the otak had walls round it and if it had boundary walls, of what height they were On the other hand we have evidence that the thala (point D) was about 6 ‑8 inches high and the outer wall of the house of Shafi deceased was only 2 feet high and had an entrance. It further transpires from the statements of Muhammad Bux P, W., and Shafi Muhammad Mashir (P. W. 7) that there were some costs, lying on the thala. It further transpires from the statements of Muhammad Bux and Shafi Muhammad P. Ws, that the otak was not only open on the southern rind eastern sides but was also partly open on the northern and western sides also. If a person were sitting on a cot which is set on this thala which is from 6‑‑‑8 inches high, he would certainly be able to look across the intervening 2 feet high wall up to the otak and if the otak had small boundary wall and was partly open on the northern side thereof Mst, Hussain Bibi certainly would be able to see Shafi Muhammad when he came towards the house in response to her call that he could take away the meal. The following description of the otak given in the Mashirnama Exh, 17 shows that there was no obstruction to visibility between the otak and the thala of the house of the deceased. "The otak is made of thatches (sic) and stood on beams (wooden thatches) facing towards east and south. The Sugar‑cane cultivation is at a distance of 45 paces from the otak which is an open ground from there sine cart see the scene of offence front there."
10. Nor do we think that Mst. Hussain Bibi should neces sarily have received gun‑shot injuries if the gun‑shot assault was made on the deceased as alleged by her from a distance of 10 or 15 paces. Nor can it be said that Mst. Hussain Bibi indulged in any contradiction when after describing herself as sitting in her house she had stated later that she and Shafi were sitting on the thala. Surely, the portion of the house where thala is situate although it is separated by a wall from the residential portion can also be described as house being its component part.
11. The discrepancies, between the different statements of Mst Hussain Bibi noticed by the learned Sessions Judge are with regard to her having stated at one place that she had prepared the meal and at another place that her daughter‑in‑law had prepared it and at another place, that her daughter had prepared it. It is well known that in the preparation of a meal even if it is manly prepared by one female of the family other females also give a hand and that possibly was the reason why Mst. Hussain Bibi had been ascribing the preparation of meal sometimes, to herself and sometimes to her daughter or daughter-in‑law. Nothing material turns on this discrepancy. The learned Sessions Judge has further spotlighted a contradiction between the statement of Laung P. W. and that of Mst. Hussain Bibi is regards the purchase of seeds. Beth Mst. Hussain Bibi and Laung P. Ws have ascribed the visit of Laung to his need of seeds. While Laung stated that the seeds were not with Shah Muhammad on that day, Asst. Hussain Bibi has stated that they had the seeds. The correct position as regards the availability of seeds with Shafi deceased would only be positively known to Shafi deceased and not to Mst. Hussain Bibi. Besides, it is pos sible that although Shafi had seeds with him he had given Laung P. W. to understand that he had no seeds with him. Shafi deceased may not have liked to give Laung P. W. seeds despite his being in possession of them. One other defect that was noticed by the learned Sessions Judge in the evidence of Mst. Hussain Bibi is that she had stated that the deceased was fired on side ways, and that he was given 6/7 shots and that the medical evidence did not show that the injuries were caused by the assailants standing from his side way' and that the injuries gave the indication that the deceased appeared to have been en trapped and encircled at the time he was given injuries on all sides of the body. We do not quite know what to say of this criticism of the learned Sessions Judge. Mst. Hussain Bibi has nowhere stated in her evidence that the deceased received the injuries only on his one side. This is what actually Mst. Hussain Bibi stated. "The accused who fired at the deceased were on the side way of the deceased". Surely the assailants must have been on one side of the deceased whether that was the front side or the right side or the left side or his hinder side. Besides, the deceased was not an inanimate object and he can well be imagined to have moved to his right and left as a reaction to the challenging shouts and the first fire‑arm report. We see nothing in the above‑mentioned statement of Mst. Hussain Bibi as incompatible 'with the nature of the injuries received by the deceased. It was further noticed by the learned Sessions Judge that although Mst. Hussain Bibi P. W. had stated that one of the assailants way armed with rifle and had fired it at the deceased .the doctor had found no bullet injury on the person of the deceased. We all know that sometimes although a fire‑arm is fired it misses the aim and in the present case the empty shell of a bullet which was recovered from the spot was found to have been discharged from the rifle which was recovered by the Police at the instance of Juman accused. We do not quite see how merely because there was no bullet wound on the body of the deceased it can be definitely held that Mst. Hussain Bibi P. W. was being untruthful in her statement that she had seen Juman accused among the accused party with a rifle which he fired. The result is that we find the criticism of the learned Sessions Judge of the evidence of Mst. Hussain Bibi P. W. as altogether misconceived and unwarranted.
12. Quite of a piece with his criticism of the evidence of Mst. Hussain Bibi P, W. is the learned Sessions Judge's comment on the evidence of Lal Khan and Laung P. Ws. The learned Sessions Judge has opened his criticism of this P. W. by stating that he is sister's husband of the deceased, that is to say the son -in‑law of Mst. Hussain Bibi P. W. Now this is incorrect. Of course, in the English record the statement "I am sister's husband of the deceased" has been put into the mouth of this witness. But on examination of the vernacular record we find that this witness had said quite the opposite of what had been ascribed to this witness in the English record. According to the 'vernacular record this witness stated in answer to a question in cross -examination "I am not the sister's husband of the deceased." It is, therefore, clear that the testimony of Lal Khan P. W. cannot be considered as of an interested witness. The learned Sessions Judge has expressed the opinion that there was no occasion for Lal Khan being in the otak with Shafi Muhammad deceased and Laung P. W. because if he had really come to 'look after the water, he would have not come and sat for idle talk with the deceased and Laung P. W, as there was nothing wrong with the flow of his water. All we can say about this criticism of this part of the version of Lal Khan P. W. is that we see nothing improbable or unnatural about Lal Khan having come to the otak of Shafi deceased on seeing him sitting and talking with Laung P. W. The learned Sessions Judge has further observed that Lal Khan has riot given us the position of the assailants from where they were firing at the deceased. Now Lal Khan's evidence at the trial was that he had come out on hearing gun‑shot reports and had found the accused firing at the deceased. His statement is also to the effect that this firing was being indulged in after the accused had come out of the sugar‑cane field. The sugar‑cane field in the site plan has been shown towards the east of the house of Shafi deceased and towards the north of the otak. Now it transpires from the evidence of different witnesses that sugar cane cultivation extended from the north of the house of Shafi deceased up to its eastern side. If, therefore, any of the witnesses described the sugar‑cane cultivation both on the north of the house of the deceased as also towards the east of the house of the deceased, we see nothing contradiction about such a statement, Furthermore, it transpires front the evidence of these different witnesses that they were not strangers to the locality and surely the situation of the sugar‑cane cultivation could not have been unknown to them. Questions are usually put with regard to the directions of different points from a particular spot in the cross‑examination of witnesses o f recovery on the assumption that those recovery witnesses, if they are false witnesses, being ignorant of the place of the recovery would flounder in their answers with regard to the direction of different points specified in the questions. But in the case of witnesses like Lal Khan P. W., who were already familiar with the topography of the spot on account of their admitted acquaintance with Shafi Muhammad deceased, merely because in their answers they sometimes described the sugar cane crop field to be on the northern side and at another described it to be on the eastern side, it cannot be inferred that they were false witnesses. For, even if they had not witnessed the occurrence, on account of the previous familiarity with the locality they would not be ignorant of the direction from the spot of such a place as the sugarcane cultivation. The apparent discrepancy in the statements of witnesses of this type will have to be set down either to their misunderstanding of the question or inaccuracy of description. Besides, we find that both Lal Khan and Laung P. Ws. in their statements at the trial have referred to the sugar‑cane crop field, being to the north without mentioning to the "north of the house". These two witnesses were sitting inside the otak of Shafi deceased and even the part of sugar‑cane crop field which on the site plan appears to be on the eastern side of the house of the deceased is to the north of the otak. It is possible that the reference of Lal Khan and Laung P. Ws. to the direction of the sugar‑cane crop field was with reference to the place from where they had allegedly emerged via the otak on the challenging shouts and the gun‑reports, and since the sugar‑cane cultivation, as already remarked, extends from the north of the house of Shafi deceased to the eastern side thereof, when a person like Lal Khan or Laung P. W. who has full knowledge of the extent of sugar‑cane cultivation, might at one stage make a reference to the cultivation as being towards the north of the house and at another stage to its being to the eastern and north‑eastern side. What we mean to say is, that the discrepancy in the statements of witnesses like Lal Khan and Laung P. Ws. as regards the direction of the sugar‑cane crop field from the place of the occurrence is of no importance at all. As regards the observation of the learned Sessions Judge that LAI P. W. has not given us the position of the assailants from where they were firing at the deceased, all that we can say is that if the defence felt that the location of the exact spot from which the assailants had fired their guns was important, Lal Khan P. W. should have been put a question on that score in his cross‑examination. But we do not think that this criticism is justified. For, Lal Khan has, in the course of his statement, stated that the accused fired at the deceased from the north‑east of the house of the deceased and from a distance of about 20/25 paces and that the assailants were at a distance of about 50 paces from him and his companion Laung P. W. when they saw the incident. The learned Sessions Judge has further made an observation to the effect that the statement of Lal Khan P. W. that he had seen the assailants firing at the deceased from a distance of about 20/2 i paces, was incorrect in the light of the medical evidence which showed that the distance between the assailants and the deceased was about more than 6 feet which might come to about 2 or 3 paces. We fail to understand by what process of appreciation of evidence has the learned Sessions Judge pronounced the statement of Lal Khan P. W. as regards the distance between the assailants and the deceased as incorrect. The doctor only expressed the opinion that the prob able range of the discharge of fire‑arms was about more than 6 feet and he further added that he could not give the correct distance. The doctor obviously, had made his above‑mentioned statement in view of his knowledge that if a fire‑arm is fired from a distance of 6 feet and snore there would be no charring or blackening of the wounds caused by fire‑arm shot. For the gun‑shot injuries that were found on the dead body of the deceased had no blackening or charring about them. Therefore, if Lal P. W. said that the assailants fired from a distance of about 20/25 paces at the deceased, we do not quite see how his statement is inconsistent with the medical evidence. The learned Sessions Judge has also noticed Lal Khan P. W.'s adverse interest to some of the accused. Lal P. W. had admitted in his cross -examination that one Muhammad Bux Pahoee had filed an injury case against Juman and Amir faux and father of Lal Khan had appeared as a witness but the two accused were acquitted in that case. Nothing has been brought on the record to say that Lal Khan or his father was interested in Muhammad Bux Pahoee to the extent of supporting him in a false case. Actually, it is not clear from the statement of Lal P. W. on which side had his father appeared as a witness in that case or whether his evidence was in the capacity of an eye witness or in the capacity of any other material witness. The learned Sessions Judge has also noticed the adverse interest of Lal Khan P. W. as against Jaffer accused Lal Khan did state at the trial that Jaffar accused had given counter‑offer with regard to the same land for which Lal had given his offer in year 1950 and Jaffar accused had succeeded in taking the land. We shall have occasion to refer to this part of the statement of Lal Khan later.
13. As regards Laung P. W. the criticism of the learned Sessions Judge is that he was a chance witness and he was not likely to have come to Shafi Muhammad for the purpose that he stated "had brought him to the deceased's house on that day. He has in this connection noticed the inconsistency in that statement and that of Mst. Hussain Bibi as regards the obtaining of the seed. We have already disposed of this part of the criticism of the learned Sessions Judge in connection with the examination of the evidence of Mst. Hussain Bibi. The other point brought up against this witness by the learned Sessions Judge is also with regard to the direction of the sugar cane cultivation. In view of what we already said on the point we do not consider it necessary to, labour the point any further.
14. The result is that we see little basis for thinking that Mst. Hussain Bibi, Lal Khan and Laung P. Ws. were false witnesses and had not actually witnessed the occurrence. They substantially corroborate each other in the prosecution version of the occurrence given in the above summary of the prosecution case. Out of these 3 witnesses Lai and Laung P. Ws. are independent witnesses and Mst. Hussain Bibi, although she is related to the deceased, is quite a natural witness of the occurrence and we find little basis, on examination of the evidence for inference that she had not seen the occurrence. Besides, their statements receive corroboration from the state ment of Shafi Muhammad (P. W 6) who was attracted to the spot on hearing gun reports and had round Mst. Hussain Bibi, Lal Khan and Laung P.'Ws. near the dead body and they had described themselves to hire an eye‑witnesses of the occurrence. This P. W. is also apparently a disinterested witness. A sugges tion was made to him that he was the hart of the deceased but he denied it. It was also suggested to hire that his sister was the wife of the deceased. This also he denied. And as already pointed out their version receives farther support from the evidence of the recovery of empty shells and the recovered fire arms and the report and. the evidence of the Ballistic Expert as also the medical evidence.
15. The question, however, remains whether it can be said that a case beyond all reasonable doubt has been established against all the 5 accused or the case of any of them is distinguishable from that of the rest. While we have no manner of doubt that Mst. Hussain Bibi, Lal Khan and Laung P. Ws. are eye‑witnesses of the occurrence we do feel that their version lacks corroboration in the case of two of the accused persons namely Gulab and Jaffar accused. The gun said to have been recovered at the instance of Gulab accused was a point 16 bore shot‑gun and the Ballistic Expert has not stated that any of the empty shells said to have been recovered from the spot was discharged from that gun. We also find that the gun that was recovered from Jaffar accused was not the gun that was sent up to the Ballistic Expert. Jaffar accused's gun is a licensed gun bearing No. 2398/M while the gun that was examined by the Ballistic Expert was No. 3298/M. It is, therefore, doubtful if any empty shall recovered from the spot had actually been discharged from the gun recovered from Jaffar accused. Besides it transpires from the evidence of Lal Khan P. W. that Lal Khan had some hostile feelings towards Jaffar accused on account of his being a successful bidder for a piece of land, which Lal Khan P. W. wanted to have. It is possible that Lal while making the F. I. R. had added the name of War accused by way of exaggeration on account of his ill‑will towards Jaffar accused and his name was also mentioned by other eye‑witnesses since Lal Khan had introduced his name in the F. I. R.
16. In this view of the matter we think that Gulab and Jaffar accused are entitled to the benefit of doubt. With the disappearance of Gulab and Jaffar‑accused from the list of the culprits the question of offence of rioting and formation of unlawful assembly falls to the ground. The guilt of the remaining accused, therefore, has to be determined on the basis of a common intention. It is significant that Kirir accused has been described as having given hatchet blows to the deceased. The medical evidence shows that the injuries which can be said to have been caused by hatchet were post mortem. This means that the injuries caused by Kirir with his hatchet were caused when the deceased had already expired his death in the circumstances of the case being instantaneous after he had received fire‑arm injuries. But it cannot be said that Kirir while giving hatchet blows to the deceased knew that the deceased had already expired. His act of giving hatchet blows, therefore, is indicative of an intention on his part that the death of the deceased should be compassed, He has, therefore, to be considered as having caused the injuries to the deceased in furtherance of the common intention of his co‑accused Juman and Amiro to murder the deceased. Besides, the hatchet which was recovered at his instance was found by the Chemical Analyser to be stained with human blood.
17. In view of the above we maintain the acquittal of Gulab and Jaffar accused but setting aside the order of Acquittal of Juman, Amir Bux and Kirir accused convict them for an offence under section 302/34, P. P. C. Since more than two years have already elapsed since the occurrence took place and by their earlier acquittal these accused had begun looking forward to a term of existence we do not consider it proper to award to them the extreme sentence provided for an offence under section 302, P. P. C. we, therefore, sentence them to transportation for life. Gulab and Jaffar accused shall if not on bail be set at liberty forthwith provided always that their custody is not required in connection with some other case. The appeal is accepted to the extent mentioned above. The other three accused, namely, Juman, Amir Bux and Kirir; if on bail shall be taken into custody to undergo their respective sentences.
In view of our disposal of the Criminal Acquittal Appeal, filed by the State, the revision petition is also dismissed.
Appeal partly accepted.
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