Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Criminal Appeal No. 158 of 1986, decided on 10th January, 1987.
---Ss.302, 307, 148 & 149--Motive--Matrimonial dispute since about 8 years--Accused party demanding hand of a girl of deceased party- --Parties residing adjacent to each other--No incident taking place during all this period--Counter-version of incident showing dispute over passing of accused party near house of complainant party--Motive as alleged by prosecution, held, could not be accepted and considered against accused in circumstances.
---Ss.302, 307, 148 & 149--Recovery of gun, whether incriminating- Licensed gun belonging to father of accused recovered after 9 days of occurrence--Ballistic Expert finding empty recovered from Wardat, fired from gun--According to witness, no empty recovered from Wardat--Investigating Officer not examined on point--Report of Ballistic Expert, held, could not be accepted and recovery of gun could not be used against accused in circumstances.
---Ss.302, 307, 148- & 149--Ocular testimony, appreciation of--One witness admitting to have arrived after deceased and injured witnesses having received injuries--Other three eye-witnesses also stated by him to have arrived on his cries--Contradictions in statements of witnesses existing about their arrival at spot and seeing firing at deceased--Prosecution alleging two fires by two accused on deceased but doctor opining all four injuries could be result of one fire--Dead body lying 10 paces away from house of complainant--Incident taking place outside house of complainant and not inside as alleged--Accused persons also receiving injuries with sharp as well as blunt weapons--Witnesses denying to have caused injuries to accused--Accused armed with gun attributed firing at deceased suffering four injuries with sharp and blunt weapons--One of injury declared grievous--Both parties found armed with weapons and withholding material facts- Evidence on record not showing as to which of accused responsible for causing injuries to deceased and witnesses--Essential element of prosecution of "common object" missing in case--Incident appearing to have occurred abruptly resulting in free fight on the spur of moment--Held, in absence of any evidence fixing responsibility of each accused, it would be difficult to convict accused for their individual acts--Acquittal ordered in circumstances.
Muhammad Hayat Junejo for Appellants.
Rashid Tariq for the State.
Date of hearing: 2nd December, 1986.
The appellants have been convicted under section 304(I), P.P.C. read with section 149, P.P.C. and sentenced to R.I. for seven years each and under section 148, P.P. C. read with section 149, P.P.C. to undergo R.I. for one year each. Both the sentences were directed to run concurrently.
2. The facts in brief are that was brother of complainant Rab Nawaz P.W.s. Abdul Halim and Shadi. They all lived together in the same house in village Ghulam Rasool Bhayo, taluka Khandkot. P.Ws. Gulab and Ghulam Nabi are cousins of deceased Tillan. The louses of accused are adjacent to the houses of complainant and there was dispute between both the parties over matrimonial affairs from 8 to 10 years. It is alleged that on 18-12-1975 at about sunset i.e the complainant flab Nawaz alongwith his brothers deceased. Abdul Halim Shadi and cousins Gulab and Ghulam Nabi were sitting the house when the appellants came there. Appellants Hazoori and Bhooro were armed with ns. Appellant Amiro was armed with hatchet while appellants Miral and Bachal were armed with lathis. Appellants Amiro and Hazoori challenged the complainant party that since they are not giving them the hand of girl hence they would not spare them. It is further alleged that deceased Tillan went out of the house and complaint and P.Ws. followed him. Accused Hazoori and Bhooro directly fireu upon Tillan from their respective weapons. The deceased fell down. The other accused gave hatchet and lathi blows to the complainant party. The complainant party raised cries which attracted certain witnesses. The accused after committing the offence went to their houses. The First Information Report way recorded by S.I.P. Noor Hassan at Police Station Kandhkot.
Counter-report was also lodged of the same incident by accused Hazoori on 19-12-1975 stating there in that on 18-12-1975 at tepahri time he (Hazoori) alongwith his brother Amiro. Bachal and nephew Bhooro were standing outside their house when they heard the cries of Miral and they went running there and saw Ghulam Nabi and Mitho armed with guns and Gulab, Abdul Halim and Tillan were armed with hatchets while Dur Muhammad and Shadi were armed with lathis who were causing injuries to Miral with their respective weapons. Accused Hazoori and others intervened and they also received injuries. Miral informed the appellant Hazoori and others that complainant Rab Nawaz and others asked him that he should not pass near their houses.
3. After usual investigation the accused were sent up to face their trial. At the trial the prosecution examined. P.Ws. Gulab, Dur Muhammad, Rab Nawaz, Abdul Halim and Shadi as the eye-witnesses. P.W. Iarar Ahmad is the Mashir. Dr. Bhirrindass conducted the post mortem examination on the dead body of deceased Tillan and found the following injuries on his person:
(1) A gunshot wound 1". x I" x scalp cavity deep through eye socket below left eye brow (wound of entry). No charring and blackening present. The eye-ball was fractured.
(2) One gunshot wound 1/3" in diameter x brain cavity deep 11/3 above left pinna on parietal region (wound of entry).
(3) Lacerated gunshot wound 1 x skin " x skin deep on forehead left side.
(4) Two gunshot wounds each 3/4" in diameter x skull cavity on forehead right side (wound be exit).
The doctor was of the opinion that the deceased died as a result of the fire-arm injuries.
He also examined the injured.
4. The appellants were charged under section 302/307/148/149, P.P. C. The learned trial Judge after evaluating the evidence came to the conclusion that the appellants could not be convicted under section 302, P.P.C. but found them guilty under section 304(1), P.P.C. and sentenced them as stated above.
5. The case against the appellants rests on the ocular testimony coupled with the motive and recovery of gun from accused Amiro who was arrested on 27-12-1975 from his house. The report of Ballistic Expert is in positive. The learned trial Judge has observed that motive in this case is that these were matrimonial disputes between the parties for about 8 years before the incident and there was ill-will between the parties and the appellants used to say that they will see the complainant party if they did not give them the hand of girl. The learned trial Judge has observed that the motive is too weak to come to some definite conclusion about the intention of the accused. In fact the motive as alleged by the prosecution cannot be accepted in the circumstances of the case. The parties were residing with each other. If the accused had any grievance against the complainant party over the matrimonial disputes they could take revenge during all this period but no incident had occurred prior to this. There is counter-report of the incident wherein it is stated by the accused that as the complainant party had prevented Miral from passing near their houses, therefore, the incident had occurred. The motive cannot be considered against the appellants.
6. As regards the recovery of gun, the date of occurrence is 18-12-1975. Accused Amiro was arrested on 27-12-1975 and a licensed) gun was recovered from his house. This gun belongs to father of accused Amiro. According to the report of the Ballistic Expert the gun was used but there is no evidence of recovery of empty therefore the report of the Ballistic Expert that the empty secured from the wardat was used in the gun cannot be accepted. P. W.6 Israr Ahmad has stated that no empty was secured from the wardat. I.O. has not been examined to prove the recovery of empty from the wardat. Even otherwise according to the finding of the learned trial Judge fire has been attributed against two accused but the deceased has received only one gunshot injury. In these circumstances the recovery of gun cannot be used against the accused persons. In fact the case of the prosecution rests entirely on the ocular testimony of Gulab, Dur Muhammad, Rab Nawaz, Abdul Halim and Shadi. Now according to P. W. Shadi the accused had challenged from outside their houses that they had come to take their Sang. On this deceased Tillan went outside the house and accused Hazoori and Bhooro fired at him and he fell down. He has admitted in his statement that when he came out he saw that Tillan was lying dead and his brothers Halim and Rab Nawaz were lying injured. He has further stated that on his cries P.Ws. Dur Muhammad, Gulab and Ghulam Nabi came out of their house and accused also gave him two hatchet blows. I may also point out that the trial Court has come to the conclusion that the incident had not occurred in the house of Tillan but it had occurred in the house of complainant. This fact is borne out from the statement of Tapedar, Elahi Bux who stated that the dead body was lying 10 paces away from the house of the complainant. As such the finding of the trial Court that incident took place outside the house of the complainant is not open to any exception. Now if we analyse the statement of P.W. Shadi then it is clear that P.Ws. Dur Muhammad, Ghulam Nabi and Gulab came after the deceased had already received gunshot injury. Therefore, their presence at the wardat becomes doubtful or at least they had not seen the incident. The trial Court itself observed that there are contradictions in the statements of P.Ws. about their arrival at the wardat and having seen firing at deceased Tillan. According to the prosecution two accused were armed with guns and both of them have fired at the deceased. According to doctor all the four injuries on the person of deceased Tillan could be the result of one gun shot. To a Court question he again stated that all the three injuries (wounds of entry) appeared to have been caused by one shot injury as they were near to each other and within the same area of face. The trial Court has also observed that that injuries on the person of the deceased could be the result of one shot only. In the instant case fire has been attributed against two accused namely Bhooro and Hazoori. It has been observed by the trial Court that it is rather unnatural that both the fires had hit the deceased at one particular part of his body. Now if specific part has been attributed to two appellants and according to the expert's opinion deceased had received one gunshot injury then the prosecution case at least against one of the appellants is false. It has not been specifically held by the Court as who was the accused who had fired at the deceased. The most important fact in the present case is that the accused persons have also received the injuries. P.W. Gulab has stated that he was empty handed. P.W. Dur Muhammad has also stated that he was empty handed and none of P. Ws. was carrying any weapon. P. W. Abdul Halim has stated that they were empty handed. P.Ws. have also stated that they have not caused any injuries to the accused persons. Dr. Bheemendas examined the injured P.Ws. and found the following injuries:
(1) Contused wound 1 x x scalp deep on left parietal region.
(2) A contused wound x x scalp deep on right rental region.
(3) A lacerated wound 1" x 1/3" x muscle deep on tip of, left little finger.
(4) A contusion 1" x 1" on right tamporal region with contusion of right eye-lid.
Injuries of P.W. Shadi
(1) Swelling on the back of right hand, right ring middle and index finger with lacerated wounds x 1/6" x skin deep (2) Swelling on left scauplla 2" x "2. Injuries of P.W. Dur Muhammad (1) Swelling 2" x 2" on left temporal region. (2) Swelling 1" x 1" on right temporal region. (3) A contusion 4" x 1" on back. (4) Swelling on back of right hand, right ring finger and middle finger. Injuries of P.W.Gulab (1) Vee shape lacerated wounds on parietal- region with each arm 2" x I" x scalp deep. (2) Swelling 2" x 2" on back of left fore arm at middle third. (3) Swelling 3" x 2" on right scapula. (4) Swelling 2" x 2" on back of right forearm at middle third. (5) Swelling 2" x 2" on right gluetal region. Appellants Hazoori, Bachal and Miral also received injuries. Injuries of Hazoori (1) Incised wound 1" x I" x scalp deep on right occipital region. (2) One incised wound 1" x 1" x scalp deep on right parietal region. (3) One incised wound 2" x " x scalp deep on left frontal region of head. (4) Red contusion 2" x 1" on right hand on back side. Injuries of Bachal (1) One incised wound 3" x I" on posterial root of back. Injuries of Miral (1) Incised wound 3" x 1I" x muscle deep on left knee anteriorly. (2) Incised wound " x 1/6" x muscle deep on left index finger. All the P. Ws. have specifically stated that they had not caused any injuries to the accused persons. The accused had received injuries by means of sharp-edged weapons and hard blunt substance. It is also to be noted that there is allegation that Hazoori had fired at the deceased but he had received four injuries. Injury No.4 received by him was declared grievous injury caused by hard and blunt substance. The other injuries were caused by sharp-cutting weapon. Now if Hazoori was armed with gun it is not believable that he would allow the complainant party to cause hatchet and lathi blows. The prosecution story thus about the part ascribed to Hazoori appears to be doubtful. The trial Court has observed that Abdul Hamil who immediately followed the deceased has stated that when they came out of the house Tillan was fired at by the accused persons. It has been observed by the Court that it casts doubt as to whether who amongst the accused had fired upon the deceased. After discussing the evidence the trial Court has come to the conclusion that the accused persons are the aggressors and the complainant party had got right of private defence but this finding is contrary to the facts on record. The complainant party has concealed the material facts. It appears that it was a free fight between the parties which might have been started on the spur of the moment. The appellants could be saddled with the liability if the common intention is shared by all the accused. It must be established that the accused know that they are jointly doing an act with the common intention and when the common intention is missing then the finding of the trial Court is incorrect. In the instant case sections 148 and 149 cannot be attracted. The definition of unlawful assembly has been given in section 141, P.P.C. Under section 146, P.P.C. whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. The essential ingredients of unlawful assembly are wanted in this case, because there was no pre-arranged.-plan and the facts show that the incident has occurred abruptly. The appellants could not be convicted either under section 148 or under section 149, P.P.C. because the prosecution has not brought on record an iota of evidence that the accused persons had formed unlawful assembly and thereafter committed the offence of rioting. In this case the evidence on record does not show as to which of the appellants had caused the injury to the deceased and P.Ws. In the absence of any evidence it is difficult to convict the appellants for their individual acts. The observation of the trial Court that the complainant party had a right of private defence cannot be determined in view of the fact that the incident had occurred outside the house. Both the parties were armed with weapons. Both the parties have withheld the material facts. In such circumstances the conviction recorded against the appellants cannot be maintained. In the case of Janu Khair Muhammad and others v. Crown (reported in I.L.R. Karachi (1943) page 148) it has been observed that in this Province, where it is so common in cases of a fight between two parties to implicate all the male members of a family when only one or other of them may have been concerned in the commission of an offence, it is but a matter of prudence not to accept the oral testimony of interested witnesses as sufficient to convict an accused person, unless the oral testimony is corroborated by other reliable oral evidence or incriminating circumstances.. In the case of Misbahuddin and others v. State P L D 1983 SC 79 it has been observed that in a case of sudden quarrel question of furtherance of common intention would not arise. In the case of Syed Ali Bepari v. Nibaram Mollah and others P L D 1962 S C 502 it has been observed that "we may observe the in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances It was also a case of free fight. The appeal is, therefore, accepted and the convictions and sentences recorded against the appellants are set aside. The appeal was accepted by the short order dated 2-12-1986 and the above arc the reasons for the same. S.A./H-39/K Appeal accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer