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Criminal Appeal No. 28 of 1973, heard on 21st November 1974.
‑‑ S. 302/149‑Murder‑Trial Court acquitting some culprits but con victing others on same evidence‑Evidence discrepant and impeachable‑ Conviction of remaining accused cannot be sustained without con sideration of such evidence‑Accused given benefit of doubt and acquitted.‑[Evidence‑Benefit of doubt].
A. G. Talpur for Appellants.
Murtaza Hussain for the State.
Date of hearing : 21st November 1974.
This is an appeal against the judgment dated 3‑1‑1973 whereby the learned Sessions Judge convicted and sentenced Ibrahim to life imprisonment under section 302, P. P. C. for causing the murder of Ahmad Ali, accused Allahdino to R. I. for three years and a fine of Rs. 500 or in default of payment of fine to further R. I. for 6 months under section 326 for causing grievous hurt to P. W. Pir Bux by gun‑shot, and accused Dinghano for one year R. I. under section 324, P. P. C. for causing simple hurt to P. W. Sulleman. Karimdino, Tharo, Bago and Ghulam Haider were tried under sections 302/149 and 326/149, P. P. C. and section 366 P. P. C. but they were acquitted. The appellants were also tried under section 366, P. P. C. but they were acquitted of this charge.
2. According to the prosecution case, about 6/7 months before the incident Mst. Ashraf Khatoon, daughter of Ismail of village Bachu Kalhoro, was abducted by Ibrahim and other Chandios. A report to this effect was lodged and the police recovered and handed over Mst. Ashraf Khatoon to her heirs after necessary medical examination. Thereafter Abdul Ghafoor, brother of Mst. Ashraf Khatoon, brought her to Ramzan and started living with him as they apprehended danger to life from the appellants. On the night of occurrence some persons with torches in their hands were seen entering the house by scaling the wall in the light of the lamp which was burning. The inmates of the house gave hakals to the appellants and their companions. but the latter asked them to keep quiet and threatened to kill them if they did otherwise. He saw Ibrahim Chandio, Allahdino, Dhingano, Karim Bux, Tharo Chandio and Bego armed with guns alongwith 9 or 10 persons, of whom some were armed with lathis and others with hatchets. These persons could not, however, be identified and therefore their names were not given in the F. I. R. Appellant Ibrahim held Mst. Ashraf Khatoon from her arm, upon which Ahmad Ali tried to rescue her. Ibrahim thereupon at the instigation of Karimdino fired his gun at him who fell down on the ground and died. Upon this, cries were raised and on account of gun fire and cries, the co‑villagers reached the place of occurrence. In the meantime, appellant Dhingano fired his gun at Sulleman. Karimdino asked his son Allahdino to shoot the person who was coming running and so Allahdino fired his gun at Karim Bux. Karim Bux received injuries and fell down on the ground. Accused Bago fired his gun at Haji Ghulam Haider who was coming there as a result of which he was also injured. Due to gun shots and commotion Hamid Kalhoro, Rasool Bux Kalhoro, Roshan Ali Kalhoro and other villagers reached there. The appellants and their companions aimed their guns at them and fired in the air to scare them and thus succeeded in abducting Mst. Ashraf Khatoon. Hamid Ali and Roshan Ali also identified Ibrahim, Allahdino, Dhingano, Karimdino, Tharo Chandio and Bago. Ramzan left for the house of Wadero Ghulam Nabi to apprise him of the incident, who also arrived at the scene of offence and directed the complainant to file a report. Thereupon a report was lodged at P. S. Tando Masti which was recorded by Abdul Rashid Beg, S. H. O, who later repaired to the vardar and from there recovered 27 empty cartridges vide mashirnama Exh. 39. He also prepared inquest report of the dead body Exh. 44 and sent for the Medical Officer of Gambat Hospital through P. W., so that the post‑mortem of the, dead body and necessary treatment to the injured could be given. He also secured a lamp vide mashirnama Exh. 40. A torch was secured from Ghulam Haider under mashirnama Exh. 42, which was in working order. P. W. Karim Bux also produced a torch, which was taken into possession vide mashirnama Exh. 43. He recorded the statements of the witnesses Ghulam Haider, Karim Bux, Sullaiman, Abdul Ghafoor, Roshan Ali, Ahmad Ali, Daim Ali and Muhammad Yousuf. He sent injured Karim Bux, Ghulam Haider and Sullaiman to the hospital for treatment and certificate. Simul taneously S. I. P. Gambat was sent to arrest the appellants and their companions and recover Mst. Ashraf Khatoon, who proceeded from the Police Station and saw two persons coming alongwith a woman about 2 miles away from Gambat Station. She was none else but Mst. Ashraf Khatoon. One of the two persons accompanying the lady ran away while the other was appellant Ibrahim who was arrested and Mst. Ashraf Khatoon was also detained vide mashirnama Exh. 19. On 6‑3‑1970 the S. H. O. Gambat, who bad earlier arrested Ibrahim and secured Mst. Ashraf, produced them before the S. H. O. Karim Dino, Allahdino, Dhingano, Tharo and Bago were arrested on 23‑3‑1970 vide mashirnamas Exh. 48 and 49. Accused Karim Dino produced a licenced gun alongwith its licence vide mashirnama Exh. 50 in the presence of moshirs Tharo and Allahdino. On 25‑3‑1970, the S. H. O. examined Ghulam Kadir and got the statements of witnesses Mst. Ashraf, Abdul Ghafoor and Ahmad Ali recorded under section 164 Cr. P. C. before the Mukhtarkar and F. C. M. Gambat. On 28‑3‑1970 he secured a gun from gun‑repairer, Allahuddino at Khairpur at the pointation of accused Dhingano vide mashirnama Exh. 51. He also recorded the statement of Allahuddin. Ibrahim's uncle's gun was also secured vide mashirnama Exh. 52. On 23‑3-1970 statements of Karim Bux, Sullaiman and Haji Ghulam Haider were recorded by the Mukhtiarkar and F. C. M. Gambat. On 26‑6‑1970 the identification test of acquitted accused was held through witnesses Ramzan, Abdul Ghafoor and Sullaiman at sub‑Jail, Jacob‑toed, under the supervision of the Mukhtarkar. Ghulam Haider was identified as one of the assailants in this identification parade, hence he was also booked for trial. After com pleting these formalities and on receipt of the Chemical Analyser's report Exh. 53, the appellants and the acquitted accused were challaned.
3. Dr. Abmad Bux went to the place of occurrence on receiving a letter of the S. H. O. Tando Masti and conducted post‑mortem on the dead body of the deceased and found the following injuries :‑
(1) 8 wounds of entry on the inner side front middle of the right thigh the wounds were 1/3" x 1/4" to 3/4" x 1/4" sizes. One abrasion 3/4" x 3/4" at the back of these wounds. All the wounds were in an area 4" x 3". Maigins inverted. No charring and blackening were present.
(2) 4 wounds of exit on the outer side of upper of back right side of thigh. Margins were averted. Each wound 1/4" x 1/4" incise going into the thigh towards injury No 1. The area was 3" x 2". One pellet was left under the skin in this area and the pellet was taken out and handed over to police in a sealed phial, with one more pellet taken out from the wound.
In his opinion the injuries were caused by the discharge from the fire -arm from a distance of about 10 feet and that the death was caused as a result of shock and haemorrhage due to injuries 1 and 2. About the latter, injury he stated that it was produced by injury No. 1.
Dr. Umed Ali Khamisani examined other injured namely Ghulam Haider, Sulleman and Karim Bux and found the following injuries on their persons :‑
(1) One black lacerated wound about 1/4" in dia x bone deep on the back of left ring finger. X‑ray shows 2 foreign bodies present in hand and fracture middle pharynx left ring finger (2 pellets were removed).
(2) One lacerated wound about 1/4" in dia on lateral side of left middle finger. X‑ray shows fracture preximal phalynx left middle finger.
(3) One black lacerated wound about 1/411 in dia medial aspect of left middle finger.
(4) 5 lacerated wounds each in dia on front of right thigh. X‑ray shows foreign body present in thigh.
(5) One black lacerated wound in dia x skin deep on right front neck.
In his opinion injuries 1 and 2 were grievous in nature while the others were simple and that they were caused by the discharge from a fire‑arm.
Sullaiman son of Manjhi
(1) One black lacerated wound about in dia x muscle deep on the back of left forearm (upper part) X‑ray shows foreign body present.
(2) One black lacerated wound about in dia on the back left fore arm crossing the front.
(3) One lacerated wound about 1/4" in dia x skin deep on front of left fore‑arm.
(4) One black lacerated wound about in dia on lateral side of left thigh. X‑ray shows foreign body present palpable in left grutial region. One pellet was removed.
(5) One black lacerated wound about in dia x skin deep on medial side of right thigh lower part.
In his opinion above injuries were simple in nature and caused by the discharge from a fire‑arm.
Karim Bux son of Kadir Bux
One circular lacerated wound about 1/4" in dia on left front chest lower part crossing to the right side. Foreign body was palpable in right lower chest X‑ray shows foreign body present in right lower chest and the pellet was removed.
In his opinion the injury was grievous in nature and also caused by the discharge from a fire‑arm.
4. In his defence appellant Muhammad Ibrahim has stated that he had filed a suit against Ismail, father of Mst. Ashraf who was his legally wedded wife, for her restoration and Ismail father of Mst. Ashraf had also filed a case against him before this case alleging Mst. Ashraf's abduction in which case he was ultimately acquitted. In that case Mst. Ashraf had supported him, as be had legally married her at Hyderabad after the recording of her statement before a Magistrate in which she showed her willingness to marry him and thereafter the marriage was solemnised with the permission of the Chairman of the Union Committee, Hyderabad. In the end he had said that since he had married Ust. Ashraf therefore, "Kalhoras" were annoyed with him and have falsely implicated him in this case. Dingano has taken up the plea of alibi and stated that he was not present at the scene of occurrence as he was at his flour mill in his village and that the case against him was the result of enmity. Allah Dino has also pleaded alibi and said that on the night of occurrence he was at Gambat where his grandmother was under treatment and he was attending to her. He has also produced a certificate Exh. 82, regarding the ailment of his grandmother. The appellants have in the end pleaded their innocence and have attributed enmity as the reason for their false implication.
5. The trial Court pot only acquitted Karimdino, Bago, Tharo and Ghulam Haider of the offence under section 366, P. P. C. but also acquitted the appellants of that charge. Again while convicting the appellants for substantive offences, it impliedly held that there was no unlawful assembly. It accepted the prosecution case that it was Ibrahim who had fired his gun at the deceased Ahmad Ali. He was, therefore, convicted under section 302, P. P. C. As for the injuries on Karim Bux and Sulleman it held that they were caused by the gun fired by Allahdmo and Dhingano respectively. No one was convicted for causing injuries to Ghulam Haider. Thus the prosecution evidence which attributed the injuries to Ghulam Haider by the gun fired by Bago was not accepted. In acquitting Ghulam Haider, the trial Court held that the only evidence against him is that of identification after a long period which has no evidentiary value. It further held that he was known to Sullaiman yet he was not named in the F I. R. Again he was not correctly picked out by Haji Ghulam Haider before the Inquiry Magistrate. In the alternate it held that even if it be accepted that he was present at the scene of offence he only helped Ibrahim while he was trying to take away Mst. Ashraf Khatoon, which presence did not incriminate him since the charge of abduction was not established. As for Tharo, the trial Court held that the evidence was weak, which assigned no part to him. Except for Karim Bux who bad stated that it was he who had fired at Sullaiman which being inconsistent was not accepted. It was also held that even if he was present and helped Ibrahim in taking away Mst. Ashraf that would not incriminate him as the charge of abduction had failed. While dealing with the case of Karimdino it held that there was only a vague allegation Mat be had instigated his son Ibrahim who fired at Ahmad Ali. But even this version is not consistent. Again in spite of the allegations that he was armed with a gun yet no one has said that he used it. Lastly it held that be was an old man and Ibrahim would not stand in need of his help to "liberate his wife." As for Bago, the trial Court held that it was not established that it was he who had fired at Haji Ghulam Haider. His identification was also held to be doubtful. As for the other witnesses, the trial Court held that they were scantly known to him and therefore did not place reliance on the evidence of those witnesses. An additional feature which the trial Court also took into consideration was that he was a "Rind" and lived in a different village and was not related to Ibrahim nor had any concern either with him or others and therefore it was not understandable as to why he would assist Ibrahim to take away Mst. Ashraf Khatoon.
6. In convicting the appellants reliance was placed on the evidence of Ramzan, Sullaiman and Abdul Ghafoor with whose evidence we shall deal pre sently. But before we advert to it, it would be of advantage to give the back ground of the so‑called abduction of Mst. Ashraf Khatoon. Her father, Ismail, and Fatehdin, her uncle, were involved in a case of abduction of Mst. Fazlan and the murder of her father Daim. In that case her father and uncle were arrested but before going to jail be had entrusted the custody of Mst. Ashraf Khatoon to Ibrahim, who it is alleged incurred expenses in this case. The entrustment of custody was understood in the context that she would be married to Ibrahim. While Fatehdin was convicted her father was acquitted and thereafter he got back the custody of Mst. Ashraf Khatoon from Ibrahim on the understanding that she would be married to him. However, her father went against his promise and wanted to marry her to someone else. Mst. Ashraf Khatoon thereupon sent a message to Ibrahim to take her away which he did and both of them were married at Hyderabad. Upon her leaving the house a case of abduction was filed and she was recovered where after she resided with her father and later taken to the house of Ramzan by her brother Abdul Ghafoor where they resided at the time of incident as it was apprehended that she might be abducted again. When examined at the trial A9st. Ashraf Khatoon denied having lived in the house of Ramzara. but stated that she lived with her father in village Bachoo Kalhoro and that she knew nothing ab,3ut the incident. She also stated that she was not abducted but went with Ibrahim on her own accord. In cross‑examination, .he stated that I‑er brother Abdul Ghafoor bad come and told her that he wanted to take her to Ibrahim, whom she willingly accompanied and he brought her to a place where Rahim was taken in police custody and from there he ran away. The police then took both of them to Police Station Gambat. While she was allowed to go away Ibrahim was detained. Ibrahim when examined at the trial gave a different version. While emphasizing that Mst. Ashraf lived with him after marriage, be denied that she was recovered while accompanying him. He stated that he was arrested from his land and thereafter the police brought Mst. Ashraf and foisted her on him. We are not impressed either with the statement of Mst. Ashraf Khatoon or the explanation of Ibrahim, which are not only inconsistent but too far‑fetched to be accepted. We are inclined to view from the evidence at the trial that she was in fact taken away from the house of Ramzan but being the wife of Ibrahim she has not supported the case of her abduction. In the context of this conclusion there cannot be denying of the fact that Mst. Aghraf Khatoon and her brother Abdul Ghafoor resided in the house of Ramzan in village Paki Khohi.
7. The trial Court also held so and observed as under :‑
"The picture that now emerges is that on the night between 4th and 5th March 1970 accused Ibrahim alongwith certain other persons had gone to the house of complainant Ramzan, to take his wife Mst. Ashraf who was held there without her consent by her brother P. W. Abdul Ghaffar. She bad all along been supporting the case of Ibrahim and claiming to be his wife.
Even after this incident she had gone back from her father's house and started living with the relations of accused Ibrahim. The charge of abduction must therefore fail. If this accused had gone there to take away his wife, who had accompanied him voluntarily, he or his companions cannot be said to have abducted her".
8. Having reached the conclusion that Mst. Ashraf Khatoon was not abducted and that there a as no unlawful assembly, the trial Court proceeded to examine a the case of each appellant to weigh his liability. As for Ibrahim it held that there could not be any doubt as to his identity as he was "nearest to the witnesses" while dragging Mst. Ashraf Khatoon and, there fore, the witnesses must have had an opportunity to see him from a close distance. It also held that it was Ibrahim who Fred at Ahmad Ali which resulted in his death. This finding is not free from doubt as the dead body of Ahmad Ali was not found in the house of Ramzan but in the deserted house of Zawar Gullan. It is the consister t case of the prosecution witnesses, namely, Ramzan, Sullaiman and Abdul Ghafoor that as soon as Ibrahim forcibly dragged. Mst. Ashraf Khatoon from the cot, Ahmed Ali intervened to rescue her and at the instigation of Karimdino, Ibrahim shot at him who fell down at the spot. Obviously the presence of dead body in the house of Zawar Gullan which was separated by a wall as high as 7 feet cannot be explained on this basis. The trial Court while considering this aspect of the case observed as under :‑
"It is proved that accused Ibrahim had caused the death of deceased Ahmed Ali by firing at him with his gun. The mashirnama of the wardat shows that the dead body of Ahmed Ali was lying in Gullan's house which is just adjacent to the complainant's house, there being only a wall between the two houses. From the medical evidence it is further proved that the fatal shot was fired at Ahmed Ali from a distance of about 10 feet. The prosecution evidence, however, shows that Ahmed Ali at first tried to rescue Mst. Ashraf from accused Ibrahim but when this accused aimed gun at Ahmed Ali, he ran for his life and tried to scale over the wall of the house to take shelter tai the adjacent house of Gulan which was lying abandoned. But before he could scale the wall, accused Ibrahim fired at him with the result that Ahmed Ali fell down dead on the other side of the wall in the house of Gulan."
Apparently the considerations which weighed in the mind of the trial Court do not find place in the evidence. In the first place the injury on Ahmed Ali is from a shot fired from infront which does not fit in with the explanation that as he was climbing the wall he was shot at from a distance of 10 feet by Ibrahim, and in the second, the witnesses have not stated drat when Ibrahim aimed his gun towards the deceased he ran for his life. In cross‑examination Ramzan merely stated that both Ahmed Ali and Sullaiman were shot at the same place and while Sullaiman fell down at the spot the deceased "had fallen down in the house of Zawar Gullan" but without stating that he was shot at while scaling the wall. Sullaiman gave another version. He stated that while the deceased was in Gullan's house he was shot at. As for himself he stated that he had fallen down in Ramzan's house as he was attempting to climb the wall while following Ahmed Ali. The third witness, Abdul Ghafoor, filled in a gap saying that Ahmed Ali was shot at while he was scaling the wall and he fell down in Gullan's house. There is a clear admission of Sullaiman that the deceased was killed in the house of Gullan, although the other two witnesses have attempted to reconcile their earlier version, from which they have resiled. Apparently what transpires in that both Ahmed Ali and Sullaiman followed Mst. Ashraf Khutoon who alongwith tl:e appellant scaled the wall and went in the deserted house of Gullan, and as he was able to scale the wall earlier, it was in Gullan's house that he was shot at and killed. At that time no prosecution witness was there to see as to who killed the deceased. The lamp according to Abdul Ghafoor was burning in the room of the house and its light could not have illuminated the deserted house of Gullan which was separated by 7 feet high wall. It is, therefore, rot possible to accept the part assigned by the witness to Ibrahim for the attempt must have been to involve him for killing the deceased as he was the main culprit and against whom a case was pending in regard to an earlier abduction of Mst. Ashraf Khatoon in which case he was acquitted later.
9 Coming now to the case of Dhingano, it is again the version of the prosecution witnesses, namely, Ramazan, Sullaiman and Abdul Ghafoor that it was he who had fired at Sullaiman. Only one shot was attributed to him. Looking to his injuries their do nut appear to have been received as a result of one shot as is admitted by the doctor in cross‑examination. According to him such injuries might have been caused by more than one shot; and as to who fired the other shots is not stated by these witnesses. We are inclined to view from the five crime empties found in the courtyard that he must have 'peen shot at while scaling the wall, which was blood‑stained and in con sequence of the injuries be fell down in the house of Ramzan. As to who were the persons who shot him, is the question which needs consideration. It is not possible to accept the ipse dixt of Abdul Ghafoor for their version is not consistent with the number of shots fired at the deceased Again, a doubt is created for Haji Ghulam Haider stated in cross‑examination that no one told him as to who shot Sulleman or Ahmed Ali The probability was that to him, the name of the assailant would have been disclosed. Karim Bux disclosed that it was the acquitted accused, Tharo, who had fired at Sulleman. He is also an injured witness. The evidence therefore, is not consistent both as regards the number of shots fired or the person who fired the shot and what transpires is that being a dark night and in the beat of commotion when shots were being fired, it was not possible for the witness, to pick out Dhingano from amongst them. As for the lantern, Abdul Ghafoor admitted that it was burning inside the room and as such it could not have illuminated the courtyard to enable the witnesses to correctly pick out the assailant of Sulleman. Lastly, it could not have been possible for Sulleman himself to see as to who had fired at him if he was climbing the wall. The trial Court has held that his participa tion is established from the consistent version of Ramzan, Karim Bux, Sulleman and Abdul Ghafoor with which we do not agree as the proscution evidence is not free from doubt. There is also no corroboration of his participation as his licenced gun did not match with any of the crime empties.
10. Lastly is the case of Allahdino, Karim Bux was shot at outside the house of Zawar Gullan while the appellants and the acquitted accused were taking away Mst. Ashraf Khatoon after getting out of the deserted house of Zawar Gullan 10 paces away from where Ghulam Haider was shot at. Obviously neither Ramzan, nor Abdul Ghafoor nor Sulleman, who on his own showing became unconscious as he fell down could have seen the assailants who had fired at Karim Bux. At least Ramzan, Sulleman or Abdul Ghafoor could not have witnessed the firing of the shot by this appellant, as they were all inside the house while Karim Bux was shot at when he was approaching the house of Ramzan which was surrounded by a wall. This is obvious from the version in the F. I R. from which they have re‑filed. Both Karim Bux and Ghulam Haider were neighbours and it is said that they carried torches in their bands wolle coming to the house of Ramzan, and it is in the light of the torch that they had identified their assailants. It is however, Karim Bux alone, who has stated that in the torch light he had seen Allahdino firing at him, but his own version as to the assailants of Ghulam Haider and Sullaiman was disbelieved which again leaves room for doubting his assertion as to his own assailant. It was a dark night and several persons were armed with guns and many shots were fired, for as many as four crime empties were found outside Gullan's house, one about 15 paces away, from where Ghulam Haider was shot at and 17 inside Gullan's house, and in that confusion, it is not possible to accept that Karim Bux would have picked out his own assailant with any certainty. The trial Court has not accepted the part assigned to Bago on the same evidence, but as to Karim Bux, the version has been accepted who was himself disbelieved as to the assailant of Ghulam Haider and Sullaiman. In the circumstances, it is not possible to place reliance on his bare words as to who his assailant was, when there is also a doubt as to the distance from where the shots were fired and whether he would keep his torch lighted at a time when the shots were being fired. The instinct of self‑preservation would be not to make his presence obvious. Besides, there is no corroboration in his case as well. It is, therefore, not possible to accept as the trial Court did, the evidence of the witnesses to fasten liability on Allahdino.
11. We have observed that Hamid Ali and Roshan Ali, who were attracted to the vardat, were not examined. The only crime empty that matched was fired from the gun of Karimdino, but he was acquitted. The trial Court, on its own surmise, held that Ibrahim must have been armed with that gun, which is not correct for the evidence led at the trial shows that Karimdino was himself armed with a gun which must be his own.
12. Upon the same evidence, the trial Court has acquitted at least foul of the culprits, namely Karimdino, Bago, Tharo and Ghulam Haider and we do not see how the conviction can be sustained without corroboration against the appellants in the context of the evidence which is discrepant and impeach able. The learned counsel for the State also conceded that the prosecution has failed to establish the guilt of the appellants. In this view of the matter A and for the reasons given above, we would give the benefit of doubt to the appellants and acquit them. The appeal stands allowed. The appellant Dhingano and Allahdino are on bail. Their bail bonds are discharged. Appellant Ibrahim should be released forthwith, unless required in some other case.
Appeal allowed.
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