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Criminal Appeal No.117 and Criminal Revision No. 106 of 1985, decided on 28^th August, 1986.

---S.302--Witness--Evidence, reliability of Prosecution witnesses admittedly related to deceased 'yet nothing on record to suggest that such witnesses having any motive or enmity to falsely involve accused on a capital charge--Mere relationship of witnesses with deceased, held, would not render them as unreliable in circumstances.--[Witness]:

---S.302--Free fight, determination of--Arms of deceased tied by one of accused while co-accused dragged him forty paces away from his house whereafter deceased was fired at twice and caused injuries with hatchet--No direct evidence of alleged quarrel between deceased and accused--Occurrence, held, one of murder and not a case of free fight, in circumstances.

---Ss.302 & 304, Part II--Offence, alteration of--Sentence, reduction in--Prosecution witnesses after hearing cries of deceased rushing outside of house and found accused variously armed--What transpired between accused and deceased prior to that however not brought in evidence--Prosecution also withholding its best evidence by not producing an important witness--Conviction of accused under 5.302, P.P.C. altered to that under S.304, Part II, P.P.C., and sentence of life imprisonment reduced to 7 years' R.I.' in, circumstances.

---S.302 Benefit of doubt Accused no injury to deceased---Accused given benefit of doubt and acquitted in circumstances.

Muhammad Hayat Junejo for Appellant.

Muhammad Ali Shaikh, Rasheed A. Akhund and Mahmood Wali.

Dates of hearing 24th and 25^th February 1986.

.--Imam Faux and his two companions Ramzan Shahmir were tried for the murder of Saeedur Rehman On 1985 IInd Additional Sessions Judge, Nawabshah convicted Imam Bux Ramzan and Shahmir under Section 302 read with Section 34 P.P.C. and each of them was sentenced to imprisonment for life They were directed to pay Rs.5,000/ each as fine and in default to undergo one moths R'I each. They were also convicted under Section 392 P.P.C. and sentenced to three years. R.I. each and they directed to pay fine of Rs. 2,000 each and in default to undergo one month RT.I. the fine if recovered was to be paid to the heirs of deceased.. appeal that-of the convicts and Mohammed Ayoob's revision petition for the enhancement of sentence of Imam Bux Ramzan and Shahmir are before us. This judgment shall dispose of appeal as well as, revision petition.

The occurrence in this case took place on 17-9-1981 at about 2 noon at a way leading to land of the complainant Mohammad Ayoob in Deh Dul Taluka Naushehro Feroze at a distance of about 7 miles towards West from police station .

The occurrence was reported at Police station Darya khan Mari by Mohammed Ayoob father of the deceased Saeedur rehman vide F.I.R. Ext. II which was duly entered by Assistant Subs-:Inspector Abdul Karim Incharge of Police Station Darya Khan Mari .The F.I.R. was sent through P .,C: Rajib Ali for 1ncorpration in Section 154 Cr.P.C. Book which was duly incorporated under Section 154 Cr.P.C. at padidan.

As for the occurrence it has been stated that P.W.No. 1 Mohammed Ayoob owns about 40 acres land in Deh Dul. There was cotton cultivation that year his son used to reside alongwith his wife P.W.2 Mst. Zulekhan in a house constructed in that land. He was resident of Naushehro Feroze and used to visit his son and his land occasionally. On the fateful day he went to visit his son armed with a licensed gun alongwith his servant Roshan Benjer and- reached his son a house at 10 a.m. He was sitting with his son and daughter law in the house and his servant was sitting outside the house. Hit about 12 noon someone called his son from outside house who went outside. He heard 'cries of his son. Upon this he alongwith, his gun came out. His daughter-in-law also followed him. He saw three persons namely appellants. Out of them Imam Bux was armed with a gun while the rest were armed with hatchets. Appellant Shahmir was tying arms of his deceased son. On seeing him, Shahmir immediately rushed to him and grappled his gun. He broke the b: of gun, threw it on ground and took barrel with himself. The appellat brought deceased son on the way within their sight. Appellant Ramzan fired from his gun point blank at deceased which hit on his left ear. Imam Bux inflicted blunt--sided hatchet to the deceased which hit his left chin. In the result deceased grappled with Imam Bux. Ramzan again opened direct gun fire at deceased which hit at calf of Imam Bux and deceased fell down. Then he and his daughter-in-law and servant entreated the appellants in the name of Holy Quran. Thereafter the appellants taking their injured accomplice Imam 13ux went to their village. They also took away his barrel of gun. On hearing the gun shots and cries villagers namely Sher Khan Lashari, Qurban Ali and others came running. He narrated the above facts and thereafter he went to lodge F.I. R.

P.W.7 Abdul Karim A.S.I. after recording F.I.R. went there, prepared necessary documents and sent the dead body for its post-mortem examination. The autopsy was held at 9.30 p. m. on the same day by Dr. Mansoor Ahmed, Medical Officer, Rural Health Centre, Padidan. He noticed the following injuries on the dead body.

(1) Circular lacerated wound 3/4 cm in diameter cutting the cartilage of left ear, going deep into occipital bone of head, with charring marks around the wound.

(2) Lacerated wound 2 cm x 1 cm x deep upto bone behind the left ear.

(3) Lacerated wound 1/3 cm in diameter near injury No.2 behind the left ear.

(4) Multiple burning marks on 15 cm x 2 cm area on lower Jaw and neck on left side.

(5) Laceration 6 cm x I cm on left shoulder.

(6) Bleeding from nose and mouth.

(7) Right upper eye-lid blackened.

(8) Swelling over left cheek and left temporal bone and left lower jaw.

(9) Swelling and redness on the right cheek fracturing the right jaw and chin.

He opined that death occurred due to shock and haemorrhage, external and internal, as a result of above-mentioned injuries. The injuries 5, 6, 7, 8 and 9 were caused by blunt substance such as lathi or back side of hatchet or butt of gun. The rest of the injuries were caused by gunshot. All the injuries were ante-mortem. Two pellets were recovered from the body. The death was instantaneous.

The appellant Imam Bux was arrested on 19-9-81 from surgical ward of Civil Hospital Nawabshah. On 2-10-1981 he was interrogated where he volunteered to produce one hatchet. It was taken into possession from his house. There was no blood on the hatchet.

The appellants Ramzan and Shahmir were arrested on 24-9-1981 from the Otak of appellant Ramzan. On 29-9-1981 while in custody he volunteered to produce a gun. He led to his house and produced a gun from underneath the 'lorah' (hedge) of his house where it was lying concealed. The Investigation Officer secured the gun No.01157/SBBL of .12. On the same day appellant Shahmir also volunteered to produce a gun. Shahmir produced one barrel gun and hatchet from the lands of Ramzan where 'Sur' bushes were standing. The barrel of the gun bore No.7771/DBBL. There was no blood on the hatchet.

The prosecution, in all, examined eight P.Ws. at the trial, out of whom P. W . 7 Dr. Mansoor Ahmed stated about the post-mortem examination of the dead body of the deceased as detailed above. Muhammad Ayoob (P.W.1) and Mst. Zulekhan (P.W.2) testified as eye-witnesses to furnish ocular account of the prosecution version. They supported the prosecution case as set out in the First Information Report (Ext.II). Abdul Karim A.S.I. (P.W.7) testified as the Investigating Officer.

P.W.7 Abdul Karim sent the following articles to the Ballistic Expert:

(1) One .12 bore shot gun SBBL No.01157.

(2) One .12 bore shot gun DBBL No.77771 without butt.

(3) One .12 bore crime empty (Cl).

(4) One .12 bore crime empty (C2).

He opined as follows:

"The examination and comparison of one .12 bore crime empty now marked as C1 and test empties prepared after firing from the .12 bore shotgun SBBL No.01157 has revealed that the individual characteristics of the one .12 bore crime empty marked as C1 and the test empties of the .12 bore shotgun SBBL No.01157 were in agreement to each other. It is therefore opined that the one .12 bore crime empty now marked as C1 was fired from the .12 bore shotgun SBBL No.01157.

The examination and comparison of one .12 bore crime empty now marked as C2 and the test empties prepared after firing from .12 bore shotgun DBBL No.77771 has revealed that the individual characteristics of the one .12 bore crime empty now marked as C2 and the test empties of left barrel of the .12 bore shotgun DBBL No.77771 were in agreement with each other. It is therefore opined that the one .12 bore crime empty marked as C2 was fired from the left barrel of the .12 bore shotgun DBBL No.77771".

The motive as disclosed in the F.I. R. is that appellant Imam Bux and Ramzan have their land and they got water from the same watercourse from which his land had been irrigated. They had been stealing the water by breaking the watercourse. His deceased son had complained to him several times upon which he had prevented the appellants. His son had complained to him that the appellants were threatening him that they would kill him. On account of this the appellants had committed murder of his son.

The learned trial Court has convicted the appellants on the basis of the ocular evidence, motive, medical evidence and the recovery of gun and hatchet. Muhammad Ayoob P.W.1 has narrated the incident as stated by him in the F.I.R. He has made a simple deviation by stating that appellant Imam Bux then grappled with his son and tried to knock him down. Appellant Ramzan fired another shot which hit appellant Imam Bux as both appellant Imam Bux and his son were amongst the arms of each other. His son fell down on the group Appellant Imam Bux also fell down on the ground.

Mst. Zulekhan P.W. 2 has corroborated the statement of the complainant. She has testified that appellant Imam Bux and Shamir then dragged her husband by pulling the hair of her husband and brought him at five feet wide path. Appellant Imam Bux then inflicted injuries to her husband on the left side of his chin with back side of the hatchet. Appellant Ramzan, who was little bit away from the deceased, then fired from his gun which hit her husband on his left ear. Imam Bux grappled with her husband when Ramzan fired another shot which hit Imam Bux as a result of which both Imam Bux a her husband fell on the ground. She denied having stated before police that Imam Bux was also holding her husband from his arms.

The plea of appellants is of denial simpliciter. They claimed to be innocent and victim of fabricated evidence. They produced evidence in defence. In reply to question (Imam Bux) "Have you anything else to say", he stated that he had received gunshot injuries at the hands of deceased Saeedur Rehman in his own lands and not in the lands of the complainant as alleged.

Ehsan Ali D.W. No.l has stated that deceased Saeedur Rehman had enticed Mst. Zulekhan from Thatta and brought her to his house and married her. The previous husband of Mst. Zulekhan had come to take revenge a number of times before the incident but he could not succeed. On the day of incident deceased Saeedur Rehman had caused gun shot injuries to appellant Imam Bux at 11 a.m. and during that scuffle the gun of deceased Saeedur Rehman was broken. At 3 p.m. on the day of the incident, Mst. Zulekhan came to him and informed him that her previous in-laws had come and killed her husband and that since she was alone in the house and they should go and inform the father of the deceased namely Muhammad Ayoob. He has stated in his cross-examination that he had not seen deceased inflicting injuries to appellant Imam Bux as he was not at the vardhat and was in his place. He has stated in his cross-examination that the place where Imam Bux received injuries was about two athas away from the house of the deceased.

Qurban D.W. 2 has stated that deceased Saeedur Rehman had enticed a girl from Thatta. Deceased used to tell that she was previously married and that the deceased had disputes with relatives of Mst. Zulekhan. On the day of the incident at about 10 a. m. Imam Bux had received gunshot injuries at the hands of deceased Saeedur Rehman in the lands of appellant Imam Bux. He has stag that he had seen that Imam Bux had received injuries. Thereafter Saeedur Rehman went to his village. Appellant Imam Bux had fallen down. He returned to his village. He has also stated that at about 2 or 3 p.m. on the same day Mst. Zulekhan came and informed him that three persons had killed her husband and she needed help . He has stated in his cross-examination that at the rime the deceased fired upon Imam Bux he was on western side of the vardhat. He has admitted in cross-examination that deceased Saeedur Rehman has two sons from Mst. Zulekhan. They were 8 to 10 years old.

We have gone through the record of this case with the assistance of the learned counsel for the appellants, learned counsel for the state and the learned counsel for the complaint.

It was contended by the learned counsel for the appellants that there was a free fight and no case punishable under Section 302, P.P.C. is made out against the appellants; that the eye-witnesses were related to the deceased and, as such, were deeply interested to depose against the appellants; that there was no independent corroboration to the interested ocular account; that medical evidence is not in line with ocular account as stated by the eye-witnesses.

Learned counsel for the State controverted the arguments of the learned counsel for the appellant that the case against the three appellants stands fully proved by the evidence on record. Learned counsel for the complainant also supported the arguments of the learned counsel for the State.

We have given our anxious consideration to the arguments of the learned counsel for the parties, and have also gone through the record of the case. In the instant case, the two eye-witnesses are closely related to the deceased. Muhammad Ayoob (P.W.1) is father of the deceased. Mst. Zulekhan (P.W.2) is wife of the deceased.

No doubt the aforementioned witnesses are relatives of the deceased but they have explained that they were present at the house of the complainant. Muhammad Ayoob (P.W.1) has explained that on 17-9-81 he had gone to the house of his son in his land. He had arrived at 10 a. m. He was sitting in the house of his son alongwith his son and his son's wife Mst. Zulekhan. At 12 noon there was a call from outside for his son on which his son went outside the house. Shortly thereafter, there came cries of his son filled with terror. He rushed outside the house with his licensed gun followed by his daughter-in-law. He saw Ramzan armed with single barrel gun and appellant Imam Bux and Shahmir armed with hatchets. He further saw that appellant Shahmir was tying the arms of his son with muffler. On seeing him, the appellant Shahmir then broke his gun. The appellant Shahmir left the butt of the gun but took the barrel of the gun with himself. A perusal of mashirnama of scene of offence (Ext.19) shows that broken butt of gun alongwith trigger one live cartridge were lying there. The same was secured by the police. The mere fact that the witnesses are related to the deceased does not render them as unreliable witnesses, particularly when there is nothing on the record to suggest that they had any motive or animosity to falsely involve the appellants on a capital charge. The testimonies of these two eye-witnesses have been corroborated by the recovery of the barrel at the instance of appellant Shahmir.

The occurrence had taken place near the house of the deceased. In the circumstances the only persons who could have witnessed the occurrence could be the inmates of the house. As such we do not find any force in the contention of the learned counsel for the appellants that no independent witness was produced. We do not find any force in the contention of the learned counsel for the appellants that Muhammad Ayoob is a chance witness. The testimony of eye-witnesses could not be shaken through cross-examination.

We are inclined to hold that it is not a case of free fight but of murder. From the statements of facts given in an earlier part of the judgment, it is obvious that the time of occurrence, the place of occurrence, the fact that the arms of the deceased were tied by Shahmir. Appellant Imam Bux and Shahmir then dragged deceased Saeedur Rehman about 40 paces away from the house. Appellant Ramzan then fired from his gun at his son which hit him on his left ear. Appellant Imam Bux inflicted the injury on the left side of his chin with back aside of the hatchet. Appellant then grappled deceased and fired to knock him down. Appellant fired another shot which hit appellant Imam Bux as appellant Imam Bux and deceased were amongst, the arms of each other, are admitted facts of the case.

To our mind the above facts disclose that it is not a case of free fight but it is a case of murder.

The ocular account has been accepted by the trial Court. Tie evidence of the two eye-witnesses against the appellants find material corroboration from the medical evidence. The learned counsel for the appellants contended that the eye-witnesses have stated that two injuries were inflicted on the deceased. His contention is that P.W. 1 has stated that Imam Bux inflicted the injury on the left side of hi-, chin with back side of the hatchet. Appellant Ramzan fired from his gun at his son, which hit him on his left ear. P.W. 2 has stated that Imam Bux inflicted injuries to her husband on the left side, his chin with back side of the hatchet. Imam Bux fired guns: which hit him on his left ear.

The evidence as given by the eye-witnesses is by medical evidence as injuries 1, 2, 3 and 4 by gunshot and; 7, 8 and 9 by blunt substance such as lathi or back side of hatchet or butt of gun were found on the dead body. The back side hatchet and gun were stated to have been used in the offence. The recovery of gun at the pointation of appellant Ramzan has supported by mashir Allah Warayo as well as the recovery of empty from the place of occurrence. The gun which was recovered is .12 bore shotgun SBBL No.01157.' According to Ballistic Expert the expert empty of .12 bore marked as C1 and the test empties of the .12 bore that shotgun SBBL 01157, were in agreement to each other. He opined that the one .12 bore crime empty was fired from .12 bore shotgun SBBL 01157. Appellant Shahmir produced one barrel gun and one hatchet. On this mashir Allah Warayo supported the recovery of hatchet and barrel of gun.

We like to mention that appellant Imam Bux was arrested from Civil Hospital, surgical ward. Appellant Imam Bux lodged F.I.R. No.83181 at P.S. Padidan. In his F.I.R. he has stated that "I was working in the land, when at about .12 noon Saeedur Rehman having a double barrel gun in hand, came there and soon after his arrival he abused me saying, "you have wasted our turn of water" Upon this I replied him on my such saying, Saeedur Rehman opened point blank gunfire to me which missed. Due to fear, I took} heels. In the movement, he opened another gunfire after me which hit on my back of cries and in the result I fell down and raised cries. Over the voice of cries and gun reports, Ramzan and Rahim Bux, by caste Dhari, who are my relatives came running there. They fired to capture Saeedur Rehman. During struggle, the gun of Saeedur Rehman broke and barrel portion of gun remained with Ramzan and other, while the other portion was retained by the accused who took and escaped to his house".

The above F.I.R. shows that the barrel remained with Ramzan and another. This also supports the case of the prosecution. Abdul Karim A.S.I. (P.W. 7) has stated that he had investigated the crime No.83 of 1981 and he recommended that the case be closed for want of evidence.

Abdul Karim has stated that he did not challan the counter-case because after inspecting the vardat of that case, he found no mark of foot prints nor there was any blood on the earth. The evidence of Abdul Karim cannot be thrown away. The ocular evidence finds support from a strong circumstance, that is, the forensic science that the empty secured from the place of occurrence v as fired from single barrel gun recovered from appellant Ramzan. This circumstance is sufficient enough to satisfy a reasonable mind that the eye-witnesses have spoken the truth. This circumstance also connects Ramzan with the murder of Saeedur Rehman deceased. The defence evidence does not rebut the prosecution case and its evidence. The statement made by Ehsan Ali D.W.1 shows that the occurrence had taken place at 11 a. m. at Imam Bux's land. The F.I.R. lodged by Imam Bux and the statement of Abdul Karim falsified their versions.

It is the case of the defence that Saeedur Rehman came to the land of Imam Bux and soon after abused Imam Bux saying "you have wasted our turn of water" upon this he replied him, on his such saying, Saeedur Rehman opened point blank gunfire at Imam Bux which missed. Due to fear he took to heels. He fired which hit him on his back and in the result he fell down and on his cries Ramzan and other persons came to the place of occurrence. The only question that arises is whether after placing in juxtaposition the case of the prosecution and that of the defence, the evidence on the record proves the case of the prosecution to the hilt against the appellants or leads to the probable inference that the defence is true or reasonably probable. As discussed above the evidence on the record proves the case of the prosecution to the hilt against the appellants.

The finding of the trial Court that the prosecution has established its case and proved the guilt of all the appellants beyond reasonable doubt is based on sound reasonings. We do not find any material to differ with the same. Muhammad Ayoob and Mst. Zulekhan have stated that Imam Bux had grappled with deceased Saeedur Rehman when appellant Ramzan fired another shot which hit Imam Bux as a result of which both Imam Bux and deceased Saeedur Rehman fell down on the ground. Both the eye-witnesses had given explanation of injury suffered by appellant Imam Bux.

It is an admitted position that both the prosecution witnesses, after hearing cries of deceased Saeedur Rehman, rushed outside the house and saw Ramzan armed with gun, Imam Bux and Shahmir armed with hatchets. What transpired prior -to this was not brought in evidence. It is important to note that Roshan Langer servant of Muhammad Ayoob was not produced by the prosecution which was the best evidence in this case and the adverse inference had to be drawn against the prosecution for withholding such evidence. There is no direct evidence of the alleged quarrel between the deceased and the appellants. The learned trial Judge found extenuating circumstances in favour of the appellants for lesser penalty. As we are of the opinion that in the instant case the circumstances do not warrant the inference that the appellant Ramzan had the requisite intention to commit murder but can only be saddled with the knowledge that his act of firing at Saeedur Rehman from close quarter w likely to result in death and the appellant Imam Bux had the requisite intention not to commit murder, but can only be saddled with the knowledge that his act of giving hatchet blow from blunt side was likely to result in death, we would substitute for the sentence of imprisonment for life under Section 302, P.P.C. read with Section 34, P.P.C. awarded to them by the trial Court the sentence of seven years' R.I. under Section 304, Part II, P.P.C. The benefit of Section 382-B, Cr.P.C. be also given to them after verifying the period as I under-trial prisoners. We have come to the conclusion that since n to injury was caused to the deceased by Shahmir, we extend benefit of doubt to Shahmir. He is therefore, acquitted and his appeal is allowed. In view of the sentence which have passed on the appellant Imam, Bux and Ramzan, we would dismiss the revision application

S. G. D./I-13/K Order accordingly.

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