1. SAJJAD ALI SHAH, J.-- This appeal is find by appellants named above against the judgment dated 12th September, 1977 of the IInd Additional Sessions Judge, Larkana, whereby they have been convicted for offence under section 302/34, P. P. C. And sentenced to life imprisonment each and a fine of Rs. 500 each or in default of payment of fine further R. I. For one year. The appellants were tried along with the other two co-accused Ranjho and Ramzan, who were given benefit of doubt and acquitted by the trial Court.
2. Brief prosecution story is that complainant Ghulam Ali is married to two wives. His second wife, namely Mst. Azizan is daughter of acquitted accused Ranjho. This marriage took place about 8 or 9 years before the incident and the complainant had agreed to pay Rs. 4,000 to his father-in---law Ranjho as compensation for this marriage but subsequently Ranjho refused to accept the money and demanded in exchange the hand of Mst. Ajeeban, daughter of deceased Shahan, who was brother of complainant. Shahan had refused to give his daughter in exchange of wife of complainant, but Ranjho and his party insisted that they would take Mst. Ajeeban by force or else the complainant party would face consequences. Since three or four years before the incident the relations between the parties were strained and they stopped visiting each other. On the day of incident, i. e. 17-1-1976 at breakfast time, complainant, his brother Shahan and complainant's son Qurban were going to take 'batai' of the crop from zamindar Sirai Bahadur Khan and as they were on their way on Katcha road and had hardly covered a call's distance' from their village, they were surprised by the appellants and two acquitted accused namely Ranjho and Ramzan, who were hiding in the bushes. Ranjho was armed with a gun while Mushtaq and Gullan had hatchets. Gahi, Roshan and Ramzan had lathis in their hands. Ranjho challenged Shahan as to how he dared to refuse hand of Mst. Ajeeban and after saying this he instigated his other companions not to spare Shahan. Thereafter Mushtaq and Gullan gave hatchet blows while Gahi, Roshan and Ramzan gave lathi blows to Shahan. On the cries came to the spot Sikandar and Ghulam Haider, who saw the assailants in the process of running away and identified them. Shahan died at the spot in consequence of injuries sustained by him at the hands of the assailants. Complainant left other witnesses near the dead body and went to Police Station, Baqrani where he lodged report at 11-30 a. m. On the same day. The distance between the spot and the police station was three miles.
3. S. H. O. Muhammad Ismail after recording F. I. R. Came to the place of occurrence accompanied by the complainant. He inspected vardat which was situate in Government Forest near village of Daulat Khokhar in Deh Madbaho taluka Dokri. He found dead body . Of Shahan lying on a track with injuries. He secured blood-stained earth, prepared inquest report and despatched the dead body for autopsy. He also prepared mashirnama of vardat Exh.
14. He examined P. Ws. Sikandar, Qurban Ali and Ghulam Haider. On 19-1-1976 he arrested Ranjho from his house who produced his licensed gun which was secured. From the same house he arrested appellants Gullan and Mushtaq who are brothers and sons of Ranjho and lived in the same house with him. Appellant Gullan while in custody led to the recovery of his blood-stained hatchet and clothes, Ajrak and shirt from palal of bathari. These articles were put into sealed parcels. Appellant Mushtaq while in custody led to the recovery of his hatchet and clothes from the corn-bin. These articles were stained with blood and put into sealed parcels. On 22-1-1976 be got 164, Cr: P. C. Statements of P. W. Sikandar and Qurban recorded by Extra Joint Civil Judge & F. C. M., Larkana. On 26-1-1976 he arrested Roshan, Gabi and Ramzan. Appellant Roshan while in custody led to the recovery of his blood-stained laths from hit house, which was seized and sealed in a parcel. Appellant Gahi, while in custody, led to the recovery of his blood-stained lathi from the hedge of his house which was seized and put into a sealed parcel. Acquitted accused Ramzan, while in custody, led to the recovery of his blood- stained lathi from palal lying in his house which was secured and sealed into a parcel. On 28-1- 1976 ha got statement under section 164, Cr. P. C. Of P. W. Ghulam Haider recorded by Extra Joint Civil Judge & F. C. M., Larkana. After completing investigation, the Investigating Officer presented challan in the Court on 3-2-1976.
4. Prosecution has examined 9 witnesses in support of its case. P. W. 3 Ghulam Ali, complainant, P. W.
5. 4 Qurban Ali and P. W. 5 Ghulam Haider have been examined as eye-witnesses of the occurrence.
6. P. W. 7 Imdad Ali mashir has attested mashirnamas of arrests and recovery of incriminating articles from the appellants and the acquitted co-accused. P. W. 6 Ghulam Qadir is also mashir who has attested mashirnama of vardat and inquest report. P. W. 1 Fateh Ali constable is corpse bearer. P. W.
7. 2 Muhammad Khan tapedar has prepared sketch of vardat Exh.
8. P. W. 8 is S. H. O. Muhammad Ismail who has investigated the case. The report of Chemical Examiner Exh. 21 on record is to the effect that earth and other articles were found to be stained with human blood with the exception of one laths, which is item No. 10 in the said report.
8. Doctor Shamsuddin was examined before the trial Court, who testified that on 17-1-1976 he performed post-mortem examination on the dead body of Shahan at Chandka Medical College Hospital, Larkana. On external examination he found the following injuries:-
(1) An incised wound 5----- x 1----- x muscle deep extending from above downwards towards the neck at the root on the right side, upto upper part of the right side of neck on the front of chest upto mannu--brium, cutting the underlying main blood vessels muscles and bones, e. g. Cutting and fracturing the right clavical bone, medially and mannubrium sternum.
(2) An incised wound 2" x 1----- muscle deep on the area of neck paralleled and attached with injury No. 1.
(3) A contusion 4----- x 1" on the top of the right shoulder.
(4) A contusion 1----- x ----- on the same area below the injury No. 3.
(5) A contusion 1----- x ----- on the back of right arm on upper third part.
(6) An abrasion measuring 3----- x 1----- on the left side of the back on middle third part.
(7) Contusion 3----- x ----- on the shoulder 5" x 1" on the lateral part of the upper part of the left thigh.
9. On internal examination he found the following damages :---
(1) Right first and second ribs fractured along with clavical and mannu--brium sternum. Right lung cut at apex. Semi-digested food material was quarterly filled.
10. From the external as well as internal examination of the dead body, he was of the opinion that the death of the deceased had occurred due to severe haemorrhage and severe shock by injuries caused by some heavy' and sharp-cutting substance such as hatchet. The injuries on neck were individually and collectively sufficient to cause death in the ordinary course of nature. The death was instantaneous and time between death and post-mortem was about 8 hours.
11. Before the trial Court, in their statements under section 342, Cr. P. C. The appellants have denied the prosecution allegations and have claimed that they have been implicated falsely in the case. They have stated that witnesses deposing against them were interested and hostile. The appellants did not produce any witness in defence.
12. We have heard the arguments of the learned counsel appearing for each side and in the light of their submissions we have very carefully examined the whole record. Prosecution case hinges upon ocular testimony of three witnesses, circumstantial evidence of recovery of alleged incriminating articles, viz: weapons and clothes, reported to be stained with human blood, by Chemical Analyser and evidence of motive. Before analysing the evidence, it would be pertinent to point out that the main witnesses in prosecution case are related inter se and there is background of enmity between the parties. The three eye-witnesses, namely P. W. 3 Ghulam Ali is brother of' deceased Shahan. P. W. 4 Qurban Ali and P. W, 5 Ghulam Haider, the other two eye-witnesses are son and maternal cousin (Masat) of complainant Ghulam Ali respectively. P W. 6 Ghulam Qadir mashir who has attested mashirnama of vardat Exh. 14 and inquest report Exh. 15, has admitted before the trial Court that he is nephew of Imam Bux and Mst. Arbab, sister of complainant Ghulam Ali, is married to Khair Muhammad who is son of Imam Bux. P. W. 7 Imdad Ali mashir of recovery of incriminating articles from appellants and acquitted co-accused has himself admitted before the trial Court that he is son of sister of complainant Ghulam Ali.
13. It would not be out of place to mention here that three appellants namely Gullan, Mushtaq and Roshan are brothers inter se and are sons of acquitted co-accused Ranjho. Ramzan is son of cousin of Ranjho. The last appellant Gahi is uncle of the other three appellants. The motive as alleged in F. I. R. And supported by the eye-witnesses is to the effect that complainant Ghulam Ali has two wives and his second wife Mst. Azizan is daughter of acquitted co-accused Ranjho, as such she is niece of appellant Gabi and sister of remaining three appellants. It is further asserted by the prosecution that Ranjho did not accept compensation of Rs. 4,003 in lieu of the marriage of his daughter and demanded hand of Mst. Ajeeban daughter of Shahan, who was brother of complainant and deceased Shahan had flatly refused to give the hand of his daughter and was further irreconcil--ably adamant about it, which gave cause for profound annoyance to the appellant party in consequence whereof relations between them ceased to be cordial and they stopped visiting each other. The appellants did not admit this to be cause of friction between the parties before the trial Court but claimed enmity, which was aggravated by filing of cases against them, by the complainant party. True copies of two F. I. Rs. And a direct complaint were produced by acquitted co-accused Ranjho before the trial Court which are on the record. Complainant Ghulam Ali has admitted before the trial Court that he, had filed a Criminal case under section 326, B P. P. C. Against Ranjho about 2 years prior to the incident in question an that case was still pending when his statement was being recorded by th trial Court in this case. Complainant has further admitted before the trial Court that P. W. Ghulam Qadir, whose relationship with the complainant has been described above, had filed a theft case against Ranjho in which he (complainant Ghulam Ali) was a witness. Complainant has further admitted in his deposition before the trial Court that Manzoor son of P. W. Ghulam Qadir had filed a case under section 326, P.
14. P. C. Against Ranjho and others in which he (complainant Ghulam Ali) was a witness. In view of this admitted and recorded enmity between the parties and for the reason that the eye-witnesses are retated inter se, we have to examine the direct evidence with great care and caution and would rely upon the same only when it is supplemented by independent corroboration.
15. While appraising the ocular testimony we have to satisfy ourselves whether these eye-witnesses were natural in the sense that they were present at the spot and saw the incident and have given correct and truthful account of the occurrence. Admittedly, the incident took place on a cart-track in Government forest near village Daulat Khokhar, which is away from the house of the complainant and the eye-witnesses claimed to be present, at the spot as they were in the company of deceased, when he was attacked. First of all, in F. I. R. Complainant has stated that while the assailants were in the process of inflicting injuries on deceased, he and his son P. W.
16. Qurban Ali raised cries on which came to the spot P. W. Ghulam Haider (masat of complainant) and Sikandar (son of complainant), who saw the assailants causing injuries to the deceased and then running away. Subsequently before the trial Court P. W. Ghulam Haider testified not as an eyo- witness but stated that on the cries he and Sikandar came to the spot and saw deceased Shahan lying injured on the ground and six assailants running away, who were identified by them. P. W.
17. Ghulam Haider has also mentioned at the spot presence of complainant Ghulam Ali and his son Qurban Ali P. W. Sikandar, however, was not examined as a witness in the Court. It is the case of prosecution that on the day of incident in the morning after taking breakfast, deceased Shahan, complainant Ghulam Ali and P. W. Qurban Ali left together to take the share of hatai from the land of Sirai Bahadur Khan, zamindar, whose haris they were. The heap of the crop, which is called "bar" was lying in the field in Deb Fareedabad. Incident took place on the way on the cart-track, when they had covered a call's distance from their village. In his deposition before the trial Court the complainant explained that they used to sleep near the 'bar' when the crop was harvested and were to continue to sleep there till it was finally distributed. The complainant further stated that other haris of SiraiBahadur Khan had already taken their shares and only their share was to be taken. In his cross-examination before the trial Court, the complainant, when asked about the night preceding the incident, abruptly stated that on the night preceding the incident, he was sleeping near the heap of crop, then having said so, he corrected himself and said again that Kamdar was sleeping there. P. W. 5 Ghulam Haider who lived about two miles away from the village of complainant and. As per case of the prosecution; had come on the evening the night and had stayed in the house of the complainant for the night, has testified before the trial Court that on the night preceding the incident, he stayed in the house of the complainant where he, Qurban Ali and deceased Shahan were present during the night from amongst the male members and complainant was sleeping near the heap of crop on the night. The Investigating Officer has stated in his deposition that the heap of the crop was, lying in the field at a distance of three quarters of a mile from the place where dead body was lying. Apart from that when the complainant party as going to take he share of balai, in the ordinary course, they were expected to take the gunny bags etc. To carry home the share of crop but no such gunny bags were found at the vardat and complainant and P. W. Qurban Ali explained the absence of gunny bags by saying that their share of crop was to be loaded on the donkeys. Not only this but P. W. Ghulam Haider who was supposed to be cutting wood in jungle nearby and P. W. Sikandar, who was supposed to be grazing cattle to the vicinity of the village also failed to explain their presence at the spot. P. W. Ghulam Haider has deposed before the trial Court that at the time of incident he was cutting wood with his hatchet and the wood cut by him was lying scattered when he rushed towards the spot on hearing cries.
18. The distance between vardat and the place where he was cutting wood was about 30.40 paces.
19. When the police officer arrived at the spot, he informed him that he was cutting wood. This witness had further stated that when he came to the spot he had his hatchet in his hand and when the police arrived at the place of occurrence the hatchet was still with him. The Investigating Officer has deposed before the trial Court that when he came to the spot P. W. Ghulam Haider was present there and he had not shown him the hatchet or the pieces of wood, which he claimed to be cutting.
20. The Investigating Officer further stated that P. W. Sikandar also did not show him the cattle heads.
21. Mashirnama of vardat Exh. 14, which appears to be a document containing graphic description of the vardat, makes no mention of the pieces of wood out and lying scattered at a distance of 30-40 paces as claimed by P. W. Ghulam Haider. This mashirnama also does not mention the presence of the cattle heads near the vardat.
22. Both complainant Ghulam Ali and P. W. 4 Qurban Ali, who claim to have seen the incident have stated before the trial Court that while they were going through Katcha road (cart-track) 6 assailants appeared from the bushes. Ranjho, armed with gun and appellants Mushtaq and Gullan armed with hatchets came out-from the northern side while Gahi, Roshan and Ramzan armed with lathis came out from the southern side. Ranjho challenged Shahan and instigated the others not to spare him whereupon Mushtaq and Gullan Dave hatchet blows while Gahi, Roshan and Ramzan gave lathi blows to Shahan who became injured and fell down. From the evidence of these two eye-witnesses, it appears that deceased Shahan could not run and could not move and when the attack was opened on him, he fell down injured on the katcha road and died there. As against this the mashirnama of vardat Exh. 14 indicates that the dead body was found on the cart track covered under a white sheet and the body was found lying supine with feet towards East and head towards Vest. On the Eastern side at a distance of 5 paces was lying blood and there were struggling marks on the scene of offence. Sketch of vardat Exh. 8 which was prepared by P. W. 2 Muhammad Khan Tapedar on the pointing out by complainant Ghulam Ali. Indicates point `A' where dead body was said to be lying and this point is not on the cart-track but is away from it at some distance in the forest consisting of khabar, krir and kandi trees. These facts are not consistent with ocular testimony as stated above. There is also no explanation as to why blood was found away from the dead body particularly when the eye-witness Qurban Ali has insisted that dead body was not removed from its origin place and both the eye-witnesses further asserted that deceased did not run and was attacked and fell down at the same place on the track. There is also no explanation how the bed sheet came to vardat with which dead body was covered. P. W.
23. Qurban Ali has stated in his deposition that after the departure of Ghulam Ali to the police station, he, Ghulam Haider and Sikandar placed bed sheet on the dead body but did not move it from its original place. In the same breath, he had stated that no one arrived from the village till the arrival of the police. It is surprising as to from where this bed sheet came to be available for covering the dead body.
24. Both the eye-witnesses Ghulam Ali and Qurban Ali have stated before the trial Court that at the time of attack, Mushtaq and Ghulam gave hatchet blows while Gahi Roshan and Ramzan gave lathi blows to Shahan, they have not enumerated the number of blows. However, P. W. Qurban, in his cross-examination before the trial Court, stated that each assailant gave two or three blows.
25. This assertion of the eye-witnesses does not appear to be consistent with medical evidence according to which the deceased bed sustained only two incised wounds, both seated on the neck and both were parallel to each other and attached with each other. Apart from this, there were four contusions and one abrasion. Prosecution version is that two persons were armed with hatchets and three with lathis, Five assailants together if P. W. Qurban Ali is to be believed that each assailant gave two or three blows, could cause more injuries than what were found on the dead body. The medical evidence is in conflict with ocular evidence on one other point also. The eye- witnesses say that they and deceased left together their house after having had breakfast acid when they covered a call's distance from their village the incident took dace. As against this, the medical evidence shows that food in the stomach of the deceased was found to be completely digested and the doctor had categorically stated that last meal taken by the deceased was about 3-4 hours prior to his death.
26. The claim of the complainant and P. W. Qurban Ali that they were going to take the batai appears to be doubtful. Complainant Ghulam Ali was expected to sleep at the heap of the crop, as per his own admission that all other harts had taken their share and it was only their share which remained to be distributed. He was, therefore, expected to have slept at the heap of the crop on the night preceding the incident. He had almost admitted before the trial Court but changed his version that, on the night preceding the incident, Kamdar had slept there. This Kamdar was not examined nor Zamindar Sirai Bahadur Khan was examined. P. W. Ghulam Haider has admitted that complainant Ghulam Ali was not in his house on the night preceding the incident. The other contradictions and discrepancies mentioned above also make the claim of the eye-witnesses doubtful as -to whether they were really present at the spot and saw the incident. We cannot resist doubt that deceased might be alone when the incident took place.
27. So far the circumstantial evidence is concerned, the Investigating Officer has deposed before the trial Court that he arrested appellant Ghulan, Mushtaq and acquitted co-accused Ranjho on 19- 1,1976 from their house, which is a joint house. Appellant Ghulan produced blood-stained hatchet and his clothes from the palal of pathari. Appellant Mushtaq produced his blood-stained hatchet and clothes from the corn-bin of his house. Both these places appear to be accessible to all the inmates of the house hence exclusive possession cannot be attributed to the appellants. There is one other factor which is very important in nature for consideration. The Investigating Officer hasp of clearly stated whether hatchets and clothes recovered from these appellants were put into separate sealed 'parcels. The report of the Chemical Examiner Exh. 31 shows that, in all, 6 sealed parcels were received in the laboratory from the police. Parcel N0. 1 contained earth. Parcel No. 2 contained hatchet with handle and tyro items of blood-stained clothes. Parcel No. 3 contained hatchet and two items of blood-stained clothes. The remaining three parcels contained wooden lathies. Mashirnama Exh. 19 does not show that hatchet and clothes recovered from appellant Gullan were put into two sealed parcels. Like--wise; mashirnama Exh. 20 does not show that hatchet and clothes recovered from appellant Mushtaq were put into two parcels. It was not proper on the part of the Investigating Officer to have placed the hatchet and clothes, allegedly recovered from the two appellants mentioned above, in one parcel each. He should have made four separate parcels. If the hatchet and blood-stained clothes are put into one parcel, then the possibility is that if one of the items, i. e. Either hatchet or clothes are not stained with blood, the same can be stained if the other item is blood-stained. The learned lower Court has acquitted co- accused Ramzan for the reason that according to the report of the Chemical Examiner the last item, i. e. No. 10 on the list, which is a wooden lathi, is not stained with human blood. The learned trial Court, perhaps inadvertently, considered that since acquitted accused Ramzan was arrested as a last person, hence lathi allegedly recovered from his was last No. 10 on the list and, since it was not found to be stained with blood, the trial Court acquitted Ramzan. On the other hand, scrutiny of the report of Chemical Examiner and the original report indicates that the last item wooden lathi which is shown as item No. 10 was not contained in last parcel No. 5 but in parcel No. 4. The Chemical Examiner in the list of the articles has not put the number of the parcels in serial order. He bas put parcel No. 4 as last and parcel No. 5 in place of parcel No. 4. Unfortunately, the Investigating Officer has also not described the parcels and has not numbered them. He has not stated categorically as to what parcel number contained what articles allegedly recovered from which accused. In the absence of such explanation, the trial Court perhaps inferred that parcels were made according to the chronological order of the arrests and the recoveries made from the accused persons: That way as it appears from the evidence of the Investigating Officer, earth was secured first which was put into parcel No 1, next came recovery of gun and licence from Ranjho but Mashirnama Exh. 18 shows that it was not put into a sealed parcel and also for the reason that the gun was not used. Then came arrest of appellant Gullan, whose hatchet and clothes were put into one parcel which becomes parcel No. 2. Thereafter, appellant Mushtaq was arrested and his hatchet and clothes were put in one parcel No 3. Thereafter, on 26-1-1976, the Investigating Officer arrested Roshan Gahi and Ramzan who voluntarily produced their lathis. Roshan first led to his house and produced blood-- stained lathi which was put in to a sealed parcel, this would become parcel No. 4. Then Gahi produced blood-stained lathi from the hedge of his house which was put in to a. Sealed parcel vide Mashirnama Exh. 22, which would become parcel No. 5. And, lastly, Ramzan produced blood-stained lathi from the palal of his house which was recovered vide Mashirnama Exh.23, and this would become parcel No. 6 in chronological order of arrests and recoveries. If the learned trial Court had correctly and minutely read the report of Chemical Examiner, he would have found that item No. 10 wooden lathi was recovered from parcel No. 4 and not parcel No. 6 as such benefit of doubt should have been given to Roshan, whose lathi was in parcel No. 4 and not Ramzan whose lathi was in parcel No. 6. In any case, we are not satisfied with the manner in which the recoveries are stated to have been made and the places from where the incriminating articles were taken out and allegedly produced. Secondly, mashir Imdad Ali is related to the complainant and is son of sister of complainant Ghulam Ali. The Investigating Officer could have picked up some other independent witnesses. Imdad Ali has testified about the recovery of incriminating articles from the appellants as well as co-accused who were acquitted. This Imdad Ali has also acted as Mushir of police in one case under section 326, P. P. C: which was filed by Manzoor son of P.
28. W: Ghulam Qadir in which case complainant was a witness as mentioned above. Not only this but the other co-mashir Ahmed who vas with this mashir Imdad Ali is also his Masat and, as such, is related to the complainant. Incidentally, it may be mentioned that P. W. 6 Ghulam Qadir who has attested mashirnama of vardat and inquest report is also related- to .The complainant. In these circumstances, we feel that the Investigating Officer should have looked for and procured independent mashirs not related to the complainant party. We do not propose to rely upon the evidence of recovery of incriminating articles from the appellants.
29. We therefore, hold that ocular evidence is not confidence-inspiring and is not reliable enough to base conviction and, further more, no independent corroboration is available and, whatever corroborative evidence is on the record, comes from interested witnesses hence one tainted piece of evidence cannot corroborate another tainted piece of evidence. Reliance is placed, on the case 4hmed v. The State (1977 P Cr. L J 662) which is the decision of Division Bench of this Court. We therefore, hold that prosecution has failed to prove the case against the appellants beyond shadow of doubt and we give benefit of doubt to the appellants and set aside their conviction and sentence and acquit them. The appeal is allowed. Appellants if not wanted in any other case may be released forthwith.
30. AQHA ALI HYDER, J.---I agree.