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Petition for Special Leave to Appeal No. K‑53 of 1974, decided on 4th March 1975,

(On appeal from the judgment and order of the High Court of Sind & Baluchistan dated 7‑8‑1974 in Confirmation Case No. 50 of 1973).

‑‑ Ss. 302/149‑[Madder case]‑Both parties receiving injuries during fight and firearms also used by accused parry killing three persons Prosecution evidence suggesting accused to have taken up positions and fired from some distance contradicted by fact of gun shot injuries on complainant‑party having charred margins ‑‑Injuries appearing to halve been received by accused persons before accused fired on complainant‑party' since complainant‑party could not get near accused persons and cause them injuries if accused fired first‑No gun recovered from any of accused persons‑Recovery of crime empties from place of incident, in circumstances, valueless‑Discrepant evidence and prosecutions' failure: to explain injuries on accused, held, rightly led High Court to give benefit of doubt to accused.

‑‑ Ss. 302/149‑[Murder case]‑‑Benefit of doubt‑‑Not necessary for accused to set up any definite case‑Sufficient for accused to manage to cast doubt on prosecution case.

Azizulluh K. Shaikh, Advocate Supreme Court Usman Ghani, Assistant Advocate‑General, Sind, instructed by M. I. Memon, Advocate‑on‑Record for Petitioner.

Muhammad Hayat Janejo, Advocate Supreme Court, instructed by Yousuf Rafi, Advocate‑on‑Record for Respondent No. 5.

Nemo for Respondents Nos, 1 to 4 and 6.

Date of hearing : 4th March 1975.

The first five respondents in this case were tried and convicted under sections 148, 302/149 and 307/149 P. P. C. by the Additional Sessions Judge, Sukkur, who sentenced three to death and two to imprisonment for life on the charge under section 302/149. They were also sentenced to various terms of imprisonment on the other charges.

On appeal and reference, the High Court has accepted the appeals and set aside the convictions and sentences. The reference has also been rejected.

The complainant, Miran Bux, has now come up for special leave to appeal and it is contended on his behalf that the acquittal of all the accused in a case in which three persons were killed and several others injured by firearm shots is unjustified.

According to the Prosecution the complainant party consisting of 8 members who were all residents of village, Jatoi, which is about 2 miles from the town, visited the bazar in the town for making purchases and as they reached the Chowk at about 4‑30 p.m. on the 18th November, 1972, the respondent Niaz Kori stopped them, hurled abuses and asked them at: to why they had come to the town. The complainant‑party returned the abuses but, in the meantime, the other respondents came up and joined the respondent, Niaz Kori: Of the se respondents, Ghulana and Rustam were armed with single barrel guns, Audo hid a double‑barrel guts while. Ali Sher had a pistol and the others had hatchets. They threatened the complainant‑party that they would not allow them to escape. Saying so, Ghulam Rustam and Adno fired their guns, which hit the deceased Danan and Wahid Bux. The first fell down there immediately. The second ran but fell down later and died. Ali Sher fired his pistol injuring four persons. Then the respondent, Niaz Kori, gave hatchet blows to another. One of the persons, Niaz Muhammad, who was given a pistol shot, died in the hospital on the next day.

The information about this incident was lodged immediately at the Bagirji Police Station which was only two furlongs away. Two of the res pondents, namely, Niaz Kori and Hatim, were arrested on the same day and from their person bloodstained clothes were recovered. The others were arrested subsequently.

It appears that a counter‑report of that incident was lodged by the res pondent, Niaz Kori, at the same Police Station the same day at 4‑30 p.m. alleging that while he was sitting in the shop of Yawar Pathan alongwith Bachal Shah and Rafiq Ghumro the complainant‑party, numbering 10 or 15 persons, came there variously armed with guns, hatchets and lathis. Out of them, one Qalb Ali abused him and instigated others not to spare him. On this Taj Muhammad and Miran Bux gave him hatchet blows and Sawan fired his gun. The pellets struck his fingers. Bachal Shah then intervened and got him separated. On their cries, Hatim also came there and saw the incident. Yawar Pathan and Rafiq Ghumro ran away from the shop after the incident.

Both parties, however, maintained that the cause of this incident was a dispute between the brother of the deceased, Khushi Muhammad and one Hyder Bux, the brother of respondent, Ramzan.

It will be noticed that in the F. I. R. lodged by the present petitioner at 5 p.m. with regard to the same incident, nothing was mentioned about any one of the accused persons being injured or of any flight in the shop of Yawar Pathan. The Investigating Officer, however, on inspecting the shop of Yawar Pathan found that not only its furniture was damaged but also there were drops of blood on many articles in the shop. The S. H. O. also got the injured accused examined by a doctor. Blunt weapon injuries were found on the respondents, Niaz Kori, Hatim and one, Bachal, whose name was mentioned in the counter report filed by Niaz Kori.

The High Court accepted that there was an incident in the shop of Yawar Pathan at which some of the accused persons received injuries includ ing the said Bachal. The medical evidence also core borated the accused as to the injuries received by them. The High Court further took the view that these injuries must have been received by the accused persons before they fired on the complainant‑party, because, if the accused persons had fired first, then it was impossible for the complainant‑party to get near the accused persons and cause them injuries.

The fact that the gunshot injuries on the complainant‑party had charred margin: also showed that the shots must have been fired from close range. This contradicted the prosecution evidence which seemed to suggest that the accused persons had taken up position and fired from some distance.

The attempt of the complainant‑party to arm Niaz both with a gun and a hatchet was also found to be improbable.

The failure on the part of the Investigating Officer to recover any gun from any one of the accused persons is also against the prosecution case. Hence, the recovery of the crime empties from the place of the incident was of no value. It could not be said from whose gun they had been fired, According to the counter‑version some of the complainant‑party were also armed with guns.

In view of these discrepancies in the evidence and the failure of the prosecution to explain the injuries on the accused persons, the High Court gave the benefit of doubt to the accused persons,

The learned counsel appearing in support of this petition, however, contends that the High Court has built up a new case of its own which was not the one put forward by the defence and, even if the accused could claim the right to private defence, the High Court bad failed to consider as to whether that right hart been exceeded in the present case or not.

Learned counsel has also commented on the fact that the recovery of blood‑stained clothes from the persons of Niaz Kori and Hatim was attached no significance. If these two accused were actually injured as found by the doctor then these blood stains could well have been from their own wounds.

Apart from this, it was not necessary for the accused persons to set up any definite defence case. It was sufficient if they could manage to cast a doubt on the prosecution case and in the facts and circumstances of the present case such a doubt had certainly been cast. It cannot, therefore, be said that the High Court had acted either perversely oar arbitrarily in giving the benefit of that doubt to the accused persons.

For the reasons given above, we see no justification for granting leave in this matter. This petition is accordingly, dismissed.

Petition dismissed.

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