ABDUL QADIR HALEPOTA, J.---The appellants Haji Ban, Imam Baksh and Mounder were tried by the learned Additional Sessions Judge, Dadu for the murder of one Umer son of Osman Sehro. By judgment dated 21-8-1975 all the appellants were convicted and sentenced to death, and each of them was also sentenced to pay a fine of Rs. 1,000 or in default thereof to suffer rigorous imprisonment for six months more in case the sentence of death was not confirmed. The appellants have appealed against their conviction and sentence and a reference has also been made by the learned Additional Sessions Judge, Dadu for confirmation of the death sentence awarded to the appellants. This judgment will dispose of both the appeal and the reference. For the sake of convenience the appellants are hereinafter referred to as `the accused'.
2. The prosecution case is that the deceased Umer, his son Bashir Ahmed and informant Mohammad Ismail were returning from the lands after cutting grass on the morning of 14-9-1973 and when they reached on the Bhan Chinni Katcha Road, near village Tajuji, ail the accused who were armed with hatchets came out from a cotton cultivation. The accused Haji Jian stopped deceased Umer and gave him a hatch blow and the deceased fell down. There--after the other two accused tightly held the deceased at the instance of the accused Haji Ran who chopped off the head of the deceased with the hatchet blows. P. W. Lal Baksh was attracted on the cries and he saw the incident. All the accused thereafter went away. P. Ws. Ismail, Bashir and Lal Baksh found that Umer had died. Lal Baksh and Bashir kept watch over the dead body and Ismail went to Bhan Police Station to lodge report. The First Informa--tion Report was recorded by the Station House Officer, Bhan, on 14-9-1973, at 11-11 a.m.
3. Upon the receipt of this report Habibuddin, S. H. O., Bhan proceed--ed to the wardat which was situated on Chinni Bhan Katch Road near the village Lajuji. He found the dead body of Umer lying there. Two bundles of grass wrapped in white sheets with one sickle in each bundle were also lying there. He held an inquest over the dead body. He secured the blood--stained earth and the blood- stained white sheets and made them into sealed parcels. The dead body of Umer was delivered to F. C. Ali Nawaz for post--mortem examination. The S. H. O., then examined Bashir Ahmed, and secured his blood-stained shirt in presence of mashirs. He then examined Lal Baksh and Rahmatullah. He then went to village Lajuji and examined Mst. Banoo. He arrested all the accused on 15-9-1973. A washed hatchet was received upon search from the house of accused Haji Jian.
Accused Imam Baksh and Mounder produced a blood-stained hatchet each from their respective houses. He secured these articles in presence of mashirs Mitbal and Rahmatullah and made them into sealed parcels. On 25-9-1973 he got 164 statement of Bashir Ahmed, Lal Baksh and Mst. Banoo recorded before the Resident Magistrate, Dadu. On 24-10-1973 the statement of Hidayat Ali, Head Constable was recorded by him. He sent the articles thus secured by him to the Chemical Analyser.
The report of the serologist was not produced in the Trial Court as the according to the S. H. O., it had not yet been received.
4. Dr. Sher Mohammad who performed the autopsy on the dead body of Umer found the following external injuries on the person of the deceased :
(1) Incised wound 8--- x 1---x as brain deep in the left perietal region.
(2) Incised wound on the middle of neck cutting the neck through and through and separating the head from the rest of the body. The injuries mentioned above were ante-mortem.
5. On internal examination he found that the skull was fractured by Injury No. 1. Brain was lacerated by Injury No. 1. In his opinion the death had occurred due to shock and haemorrhage and asphyxia as a result of the blood vessels of the neck, trachea and spinal cord and injury to the brain caused by a sharp-cutting weapon such as a hatchet. Both the injuries mentioned above collectively and individually were sufficient in the ordinary course of nature to cause death.
6. In their statements under section 342 of the Code of Criminal Procedure all the accused denied the prosecution allegations. Haji Jian stated that he has been falsely implicated in this case on account of enmity over matrimonial affairs ; and dispute over lands with the deceased. He further stated that all the prosecution witnesses were closely related to each other and hostile to him. The other two accused Mounder and Imam Baksh, also denied the prosecutions allegations and stated that they had been implicated as Mounder was a Hari of Haji Jian and Imam Baksh was his 'Maroto'
(son of maternal uncle).
7. The prosecution evidence against the accused consisted of the ocular testimony of P. Ws. Bashir Ahmed, Mohammad Ismail and Lal Baksh duly supported by the evidence relating to the recovery of blood-stained hatchets each from those three accused. It is alleged that the deceased was on terms of illicit intimacy with Mst. Banoo. Accused Haji Jian who was also interested in Mst. Banoo had asked deceased Umer to stop further relations with Mst. Banoo or else he would be killed. This is the motive for the commission of the offence of murder.
8. Before discussing the ocular evidence which is in fact the only evidence in this case, it would be convenient to first deal with the evidence relating to the recovery of blood-stained hatchets from the accused and evidence relating to motive.
9. As regards recovery of hatchets, it may at once be stated that both the mashirs, Mithal and Rahmatullah have not supported the prosecution case relating to the recovery of the hatchets from the house of accused Haji Jian. P. W. Rabmatullah who was summoned as a second mashir after P. W. Mithal did not support the prosecution's version relating to the recovery of blood-stained hatchets from all the accused, however, supported the prosecution as regards the production of blood-stained hatchets each by the accused Imam Baksh and Mounder. It would however, be interesting to note that none of these two accused are alleged to have caused any blow with hatchet to the deceased. The only part assigned to them by the eye-witnesses is that they held the deceased tight in order to facilitate the co.Accused Haji Jian to cause more hatchet blows to the deceased. In view of this, it is not understood how the hatchets, if any produced by the accused Imam Baksh and Mounder would be found stained with human blood. As regards Haji Ban as stated hereinabove, none of the two mashirs Mithal and Rahmatullah have supported the presecution's case relating to the recovery of the hatchet from his house. The other witness whose evidence can be taken into consideration in this regard is the testimony of the Investigating Officer, Habibuddin who has stated that he recovered a washed hatchet from the house of accused Haji Jian and a blood-stained hatchet each from the respective houses of Imam Baksh and Mounder, which as stated hereinabove could not possibly be stained with human blood, as none of these two accused is alleged to have done any overt act by using their hatchet and/or causing any blow to the deceased. The hatchet allegedly recovered from the house of accused Haji Jian was washed and in the absence of the report of the Serologist which was not produced before the trial Court, it cannot be said that this washed hatchet had any stains of human blood on it. The result, therefore, is that we are unable to believe the evidence relating to the recovery of blood-stained hatchet from any of the accused.
10. Now, coming to the evidence relating to the motive, we find that Mst. Banoo who was examined as prosecution witness in the trial Court has not supported the prosecution's case. In her statement before the trial Court she denied altogether that she knew the deceased Umer. She stated that accused Haji Jian did not ask her for anything before the incident. She denied that she had ever gone to Police Station Bhan with any complaint against Haji Jian. Mst. Banoo was declared hostile and cross-examined. She was confronted with her earlier statement. She stated that she had made the earlier statement on account of the threats issued by the Investigat--ing Officer. The non-cognizable report filed by her on 7-9-1973 at Police Station Bhan was produced by P. W.
Hidayatali, the Head Constable Incharge of that Police Station. She was not even confronted with this report. On the point of motive there is also the evidence of P. W. Lal Baksh who stated that accused Haji Jian told him to ask the deceased to discontinue his illicit terms with Mst. Banoo. P. W.
Rehmatullah however, did not support this version in the trial Court. He stated that accused Haji Jian had no illicit connection with any woman and that he (Haji Jian) had not told him anything about Umer before this incident. Lal Baksh is the cousin of informant Ismail and Rehmatullah is his "Marote". This relationship is admitted by him in his cross-examination to the counsel for the accused. Considering the overall evidence relating to motive adduced by the prosecution we are of the view that the prosecution has failed to establish motive in this case.
11. Then there remains only the ocular evidence of informant Ismail, Bashir Ahmed and P. W. Lal Baksh. Admittedly Ismail is the cousin of the deceased. Bashir Ahmed is the son of the deceased and Lal Baksh is the cousin of the informant Ismail. All the three eye-witnesses are therefore, closely related inter se.
12. In his evidence in trial Court the informant Haji Ismail stated that he along with the deceased Umar, and Bashir had gone to cut grass from the fields. After cutting the grass they were returning to their house. When they reached Bhan Chinni Road, all the three accused emerged from the cotton cultivation. They bad hatchets in their hands. Accused Jian challenged deceased Umar to stop. He then gave hatchet blow to the deceased who fell down. He then directed Imam Bakhsh and Mounder to overpower the deceased and sit over him. They then held the deceased and accused Jian chopped off the head of the deceased with hatchet. P. Ws. Bashir Ahmed and Lai Bux also supported the version of informant. Both of them stated that accused Haji Jian gave hatchet blows to the deceased while the other two accused held him tightly.
13. The question to be determined in this appeal is whether the testi--mony of these interested witnesses can be believed and made the sole basis for the conviction of the accused. Admittedly, some other persons, were also allegedly attracted by the cries and came to the scene of offence. P.
W. Basbir Ahmed has admitted in cross-examination that some of them were even present at the time, the Police arrived at the scene of offence and police also made enquiries from them. It is surprising that the prosecution did not produce a single witness from amongst those who had collected at the scene of offence immediately after the occurrence. The prosecution could have well relied upon such evidence in support of the ocular evidence given by these interested witnesses but it has not been done. There is enmity between accused Haji Jian and the deceased.
Not only that relations between them were strained on account of Mst. Banoo but it appears that there was also dispute over lane between them. The other two accused are closely connect--ed with Haji Jian. Imam Bux is son of his maternal uncle and Mounder is his hari. This being the position it would be highly unsafe to base con--victions on the testimony of these interested eye-witnesses in the absence of corroborative evidence. The prosecution has thus failed to prove the charge against the accused beyond reasonable doubt.
14. It was for these reasons that we had by a short order made earlier ordered the release of all the accused. The appeal was accordingly allowed and the reference made by the learned Additional Sessions Judge was rejected. The death sentence awarded to the appellants was not confirmed.
The sentence of fine imposed upon the accused was also set aside.