1. SAJJAD ALI SHAH, J.--Above-named three appellants have filed this appeal against the judgment dated 1st November, 1977 passed by the learned Sessions Judge, Jacobabad, whereby they have been convicted under section ?02/34, P.P.C. And sentenced to life imprisonment each on two counts and to pay compensation of Rs. 500 under sec--tion 544-A, Cr. P. C. In case of default of payment of compensation, they have been ordered to suffer R.I. For three months. The appellants have also been convicted under section 13-D of the Arms Ordinance and sentenced each to R.I. For 12 months. It has further been directed in the impugned judgment that the substantive sentences are to run con--currently and if there is a default in payment of compensation, the sentences are to run consequently.
2. Shortly stated prosecution case is that appellants Mundhoo alias Ghulam Hussain and Hashoo alias Ghulam Muhammad are brothers inter se and are sons of Abdul Nabi. Appellant Muhammad Hassan, son of Ahmad Brohi is maternal cousin of the brother-appellants men--tioned above.
3. Deceased Mst. Sat Bhai was married to Abdul Nabi and from that marriage she gave birth to appellants Mundhoo and Hashoo, who were very young boys when about 20-25 years ago she left Abdul Nabi and married deceased Ghulam Muhammad, with whom she was living till the time of incident. Appellants Mundhoo and Hashoo continued to live in the house of their father Abdul Nabi and were separated from mother. They bore grudge against their mother Mst. Sat Bhai for having deserted them in childhood and marrying deceased Ghulam Muhammad.
4. On the night of incident, i.e. The night between 3rd and 4th October, 1976 at about 2-00 a.m. P. Ws.
5. Kadir Bux and Muhammad Siddique, who are brothers of deceased Ghulam Muhammad and Abdul Karim, who is their cousin, woke up in their house on the reports of gun shots and found appellants Mundhoo and Hashoo armed with guns standing near the cot where Ghulam Muhammad and his wife Mst. Sat Bhai were sleeping. Appellant Muhammad 1aassan also armed with a gun was standing 5 or 6 paces away from the cot. The appellants were identified in the light of bulb in electric pole, which was at a distance of about 5 paces away from the cot of deceased persons. On waking up of witnesses mentioned above who were sleeping in the courtyard of the house, the appellants threatened them not to come near, otherwise they would be killed. Thereafter appellants fired a few shots in the air and declared that they had taken their revenge and went away. Witnesses went near and found both Ghulam Muhammad and his wife Mst. Sat' Bhai having died in the result of gunshot injuries they had sustained cries of the witnesses attracted neighbourers to the spot including Nabi Bux and Faiz Muhammad who were apprised of the facts of the incident, whereafter complainant Kadir Bux went to the Police Station Saddar, Jacobabad on foot, where he reached at 9-00 a.m. In the morning of 4th October, 1976 and filed his F.I.R.
6. P. W. 8 Ghulam Hussain Shah, A.S.I. After recording the report visited the place of occurrence in presence of mashirs Nabi Bux and Faiz Muhammad, which was pointed out by complainant Kadir Bux. Dead---bodies of Ghulam Muhammad and Mst. Sat Bhai were lying there with gun shot injuries and he secured blood-stained earth, which was put into a sealed parcel. He noted in the mashirnama electric pole, which was fixed outside the courtyard of house and there was a bulb in it. No crime empty was recovered from the spot. He prepared inquest reports of the dead bodies and sent them to the hospital for post-mortem examination. He also recorded the statements of Abdul Karim and Muhammad Siddiq. On 17th October, 1976 at night, he arrested appellants Mundhoo and Hashoo at Bakapur bridge in nakabandi. Both the appellants were carrying single barrel guns, which were re--covered. Both guns were loaded with one live cartridge each. He further secured three other live cartridges from Mundhoo and two from Hashoo. He prepared such mashirnama and brought the two appellants to the Police Station and registered cases against them under sec--tion 13-D of the Arms Ordinance. On 23rd October, 1976 he got recorded 164, Cr. P.
7. C. Statements of P. Ws. Muhammad Siddiq and Abdul Karim. On the same day at night in nakabandi- he arrested appellant Muhammad Hassan but nothing was recovered from him. After completing other steps of investigation, the Investigating Officer handed over the papers to S.H.O.
8. Muhammad Ibrahim who presented the challan in the Court on 1st November, 1976.
9. Prosecution has examined 8 witnesses in support of its case. P. W. I Kadir Bux, P. W. 2 Muhammad Siddiq and P. W. 3 Abdul Karim have testified as eye-witnesses of the occurrence. P. W.4 Muhammad Hassan constable is corpse bearer. P. W. 6 Ali Ahmad, Tapedar has prepared sketch of vardat (Exh. 18) and inquest reports (Exhs. 19 and 20). P. W. 8 Ghulam Hussain Shah A.S.I. Has investigated the case and has produced the report of Chemical Examiner (Exh. 24) which is positive.
10. P. W. 5 Doctor Moolchand conducted autopsy on the dead bodies of two deceased persons on 4th October, 1976 at Civil Hospital, Jacobabad. On external examination of the dead body of Ghulam Muhammad he found the following injuries: - (1)Five lacerated punctured type of wound, --', in diameter each with charring present in area of 1-- sq. Inches on front of the right chest near sternum in the middle and inner to right nipple, as a wound of entrance.
11. (2)Lacerated punctured type of wounds 2" in diameter into bone deep with charring present on left forearm in the middle at its inner aspect as wound of enterance.
12. (3)A lacerated punctured type of wound, 3" in diameter into bone deep on outer aspect of left forearm with fracture of bones of left forearm as a wound of exit.
13. On internal examination he found the following injuries Walls of the chest were punctured on right side. Right 3rd and 4th ribs were fractured, right pluerae, right lung, were punctured. Peri--cardium and heart were punctured on right side. Blood vessels were injured in the chest cavity and chest cavity, was full of blood. Stomach was healthy and containing thin paste. Left radius and ulna bone were fractured. All other organs were healthy and normal.
14. From the external as well as internal examination of the deceased he was of th-- opinion that the death was due to shock and haemorrhage as a result of injuries mentioned above caused by discharge from fire--arm such as gun. All the injuries were ante-mortem in nature and were sufficient to cause death. Both the injuries individually and collectively were sufficient to cause death in the ordinary course of nature. The death was instantaneous and probable time between death and post---mortem was within 24 hours. The assailant in case of injury- No. 1 must be within six feet from the victim while in case of injury No. 2 the assailant must be within four feet from the deceased.
15. On the same day he examined the dead body of Mst. Sat Bhai and found the following injuries: - (1)A punctured wound, 6' x 4" x bone deep and chest cavity deep with blackening and charring present on upper part of right arm near with humerous bone crushed and wound shoulder' extending deep upto chest cavity with big vessels of axilla ruptured (as a wound of entrance).
16. On internal examination he found walls of chest punctured, above axilla with fracture of second right rib, right pleura and right lung were puctured, blood vessels were injured at site of injuries.
17. Stomach was healthy and normal.
18. From the external as well as internal examination of w dead body he was of the opinion that the death was due to shock and haemorrhage as a result of the injuries mentioned above caused by discharge from a fire-arm such as gun. The injury was ante-mortem in nature and sufficient to cause death in the ordinary course of nature and was fired from at a distance of within four feet.
19. The probable time between the death and post-mortem was within 24 hours.
20. The defence of the appellants before the trial Court has been total denial of prosecution allegations and false implication in the case due to enmity. Appellants Hashoo and Mundhoo have also denied the recovery of guns and live cartridges from them. Appellant Muhammad Hassan has further stated in his section 342, Cr. P.C. Statement before the trial Court that he was involved in this case falsely due to enmity for the reason that he is related to the other two appellants. He has further stated that appellants Mundhoo and Hashoo are his maternal---cousins at the night of incident his son had expired and he was present in his house. On the next morning when police came to their village he was present and he was not arrested, as he was found innocent.
21. Subsequently he was called at village Sohbatpur through Zafar Golo and was arrested in this case.
22. Appellant Muhammad Hassan had examined before the trial Court two witnesses in his defence.
23. They are Hafiz, Bahawal and Abdul Ghafoor. Both these witnesses have supported the appellant before the trial Court about the death of his son on the night ref incident and his presence to the village throughout tile night anti the next morning when his son was buried. They have further stated that police came to their village in the morning and did not arrest appellant Muhammad Hassan. Defence witness Hafiz Bahawal had led janaza prayers of the dead son of appellant Muhammad Hassan. The other defence witness Abdul Ghafoor is kamdar of zamindar Zafar Ali Golo. Appellant Muhammad Hassan is hari of Zafar Ali Golo.
24. We have heard at length the arguments advanced by the learned counsel appearing for each side, In this case the prosecution evidence consists of ocular testimony of three witnesses supported by medical evidence and evidence on the point of motive. Mr. Azizullah K. Shaikh, the learned counsel for the appellantsly has vigorous criticised the evidence of the prosecution to be gross inadequately to warrant con--victions and sentences of the appellants. It is admitted position that these three witnesses are closely related to the deceased. P. Ws. Kadir Bux and Muhammad Siddique are brothers of deceased while P. W. Abdul Karim is their cousin. It is indisputable that they are inmates of the same house, as such they can be termed as natural witnesses but at the same time they are interested, as such their evidence is to be scrutinised with great care and caution and 'would be accepted only when it is corroborated from independent sources. The pivotal question which falls for consideration' is whether these three eye-witnesses have seen the incident, identified the assailants and have given a truthful account of the occurrence. The perusal of their evidence shows that they have not seen the assailants in the process of firing at the deceased persons. It is the case of the prosecution that these three eye witnesses who were sleeping in the same court yard of the house woke up on the reports of gun fire and saw appellants Mundhoo and Hashoo standing with their guns near the cot where deceased husband and wife were sleeping and appellant Muhammad Hassan was standing away from them at a distance of about 5-6 paces, armed with a gun. It is also the case of the prosecution that the appellants were identified by the eye-witnesses in the light of bulb in the electric pole, which was fixed outside the hedge of the house and the cot of the deceased persons was at a distance of about 5 paces from the electric pole. All the three eye-witnesses claimed to have awakened on the reports of gunfire and saw the assailants stand--ing armed with guns near the cot of the deceased persons. This they have stated before the trial Court in their evidence. As against this, complai--nant Kadir Bux had stated in F.I.R. That they woke up on the reports of gunfire and saw Mundhoo and Hashoo appellants were firing from their guns at the cot of the deceased persons. It appears that subsequently the eye-witnesses changed the version to the extent that they did not see actual firing by the appellants Hashoo and Mundhoo at the deceased persons but only saw them standing armed with guns near the cot of deceased persons. Complainant Kadir Bux has testified before the trial Court that after they woke up the appellants threatened them not to approach them as they had taken revenge and after that they fired their guns in the air and went away. He has also further stated that before he got up he had heard 3-4 reports of gunshots. No crime empty was recovered from the spot. It would not be out of place to mention here that during the investigation two single barrel guns were recovered from the appellants Mundhoo and Hashoo allegedly crime weapons and as per prosecution case if so many shots were fired, there should have been some crime empties at the spot as the single barrel guns had to be reloaded for repeated firing.
25. Strangely enough in the mashirnama of vardat there is no mention about the place where the cots of these eye-witnesses were lying in the courtyard of the house where incident took place but only the houses of complainant and P. Ws. Muhammad Siddique and Abdul Karim are mentioned to be in the same courtyard. Sketch of vardat (Exh. 16) which-Was prepared belatedly on 2nd June, 1977 on the pointing out of eye-witnesses Kadir Bux complainant and Abdul Karim mentions the places where the cots of the eye-witnesses were lying at the time of incident. According to the sketch at point F. Cot of complainant Kadir Bux was lying in the courtyard of the house .At a distance of 51 feet from point A where deceased persons were done to death. At point F cot-of Muhammad Siddique eye-witness was lying, at a distance of 78 feet and point N indicate the house of P. W.
26. Abdul Karim at a distance of 202 feet from point A. P. W. 3 Abdul Karim claims to be sleeping in front of his house in the same common courtyard where the incident took place. These distances, which appear to be sufficiently away from the place of incident are indisputable for the reason that the sketch was drawn at the pointation of eye-witnesses Kadir Bux and Abdul Karim themselves.
27. According to the sketch at point C outside the hedge electric pole was fixed in which it is stated that two bulbs were fixed one facing the southern side and the other northern side. The distance between the electric pole and point A where the deceased persons were killed was 33 feet and not 5 or 6 paces as is stated by the eye--witnesses before the trial Court. The distance of 33 feet in terms of paces would come to about 16 or 17 paces. It is stated by Ali Ahmed, Tapedar P. W. 6 in his evidence that this electric pole was of the height of 15 or 16 feet. Mr. Azizullah K. Shaikh contended that place of occurrence was situated in village More Wah in Deh Ali Pur, which is 'not an urban area as such the voltage of electricity must be low. It is not stated in the evidence as to of what voltage the said bulbs were and in the absence of any evidence to the contrary, the presumption favourable to the appellants is that -the bulbs must be of low voltage since they were two in number fixed in one pole. Mashirnama of vardat mentions only one bulb. From these two bulbs one was facing the direction in which the house of the deceased persons was situate. The other bulb was in the opposite direction. Mr. Azizullah Shaikh conten--ded that from the sketch of the place of vardat it is indicated that the entrance to the house comes first and the electric pole is fixed outside the hedge on the same side. Thereafter the first cot was lying where both unfortunate deceased persons were said to be sleeping and were fired at. Then in the same direction while going upwards first the cot of complainant Kadir Bux lying at a distance of 51 feet from the cot of the deceased persons at point A, then further up cot of eye-witness Muhammad Siddiq was lying at a distance of 78 feet from point A and thirdly still further up in the same direction cot of eye- witness Abdul Karim was lying at a distance of 202 feet from point A. The sketch therefore, shows that if the eye-witnesses saw the incident or the appel--lants near the cot of the deceased persons then the electric pole would be behind them at a distance of 33 feet from the cot of the deceased persons which means that complainant Kadir Bux would see the appel--1puts from a distance of 51 plus 33 feet which comes to 84 feet, eye-witness Muhammad Siddiq would see the appellants from a distance of 78 feet plus 33 feet which comes to 111 feet and eye-witness Abdul Karim would see them from a distance of 202 feet plus 33 feet which comes to 235 feet. It is not clear from the evidence and the eye-witness do not say specifically as to how appellants were standing near the cot of the deceased persons and whether all of them were on the same side of the cot or whether appellant Mundhoo was on one side of the cot and appel--lant Hashoo was on the other side. 1n any case if the appellants were facing the eye-witnesses then the light from the electric bulb was behind the appellants and if the appellants were standing on the other side of the cot with their backs to the eye-witnesses then they would be facing the electric pole. In both cases the eye-witnesses would not be in a position to see them clearly and identify them as the electric pole would be on one side and in between would be the appellants and the cot of the deceased persons and the eye-witnesses in the opposite direction. Secondly the electric pole being so high and so away from the cot of the deceased persons there would not be sufficient light. Although the trial Court has observed in the judgment that there must be some moon light also because the incident took place on the night between 8th and 9th of lunar month of Shawal but no witness has said anywhere in his evidence that there was also some moon light, hence this observation is not supported by evidence on the record. We therefore, are highly doubtful about the assertion of the prosecution that the eye-witnesses had identified the appellants in the light of electric pole.
28. There are so many other infirmities in the evidence of the eye--witnesses, which indicate that they have not seen the incident. First of all it is the case of the prosecution that both deceased persons Ghulam Muhammad and his wife Mst. .Sat Bhai was sleeping on the same cot when they were fired at and the eye-witnesses also found the dead bodies with gun shot injuries lying on the same cot.
29. On the following day when the Investigating Officer came to the spot and prepared mashirnama of vardat he has mentioned in it that dead-bodies were lying on separate cots. P. W.
7. Nabi Bux mashir has deposed before the trial Court that when he came to the vardat he saw the dead bodies of Ghulam Muhammad and Mst. Sat Bhai were lying on the ground and the cots were lying nearby, and thereafter Police put the dead bodies on the cots. There is no cross-examination of this mashir on this point and only one question was asked from him to which he replied that he is not related to deceased Ghulam Muhammad nor he is related to Mst. Sat Bhai. He has further stated that he lives in the same village since three years. This shows that the statement of this mashir goes unchallenged. On the other hand none of the eye-witnesses nor the Investigating Officer has explained as to why the dead bodies were removed from the same cot and put on separate cots.
30. This unclarified mysterious part of the story creates doubt.
31. There are two separate inquest reports. Inquest report on the dead body of Ghulam Muhammad is Exh. 19 and that of deceased Mst. Sat Bhai is Exh.
20. Column four of these inquest reports which says by whom the news was brought and what the person said in communication of it, it is answered in both the reports that Kadir Bux son of Rahim Bux Brohi came and said that some persons have committed murder of Ghulam Muhammad and Mst. Sat Bhai by opening gunfire.
32. These inquest reports were prepared by the same Investigating Officer Ghulam Hussain who had recorded the F. I. R. At the police station and is that F. I. R. The names of the assailants were clearly given. It is not under--standable as to why he should write in the inquest reports that the complainant did not know as to who opened fire on the deceased persons and the murders were committed by some unknown persons: From this an inference can be drawn that the culprits were not known to the complainant and names of the appellants were inserted in F. I. R. Subsequently or the F. I. R. Was drawn up after the investigation had commenced.
33. The complainant has stated in F. I. R. That after the incident his cousin Faiz Muhammad Brohi and other persons from the village came to the spot to whom he narrated the facts. In his evidence before the trial Court he stated that Nabi Bux and Faiz Muhammad and others came to the village after the incident and they narrated the facts to them. Eye-witness Muhammad Siddiq has stated before the trial Court that many other villagers came to the vardat after the incident. P. W. Abdul Karim has also said the same thing in his statement before the trial Court. In cross-examination he admitted that Bhanghars and people of other castes came to the village after the incident. He has also admitted that son of Kherajmal by name Kishan had come to the vardat with Police. Police had come in the jeep of Kherajmal and complainant also came with the Police. Complainant Kadir Bux has further admitted in his cross-examination before the trial Court that after the incident he went to Jacobabad, informed Kherajmal about the incident and then went to the police station.
34. Three or four villagers were with him when he went to the police station. He had further stated that he could not give the names of those persons as he was not in his proper senses but he was in his senses when he lodged the report. He had also admitted in his cross-examination that when he informed Kherajmal about the incident, Kherajmal telephoned S. H. O. And told him to take his report. He further admitted that son of Kherajmal came to the police station after his report was lodged. Unfortunately prosecution did not examine any one of these witnesses in support of the version of the complainant. Even the, persons who were specifically named to have come to the spot after the incident and were apprised of the facts of incident, were not examined. So the oral testimony of the interested eye-witnesses is not corroborated by any other witness to say that the names of the appellants were given by eye-witnesses, who claimed to have seen the incident and identified the appellants.
35. P. W. 2 Muhammad Siddiq eye-witness has deposed before the trial Court that deceased Ghulam Muhammad had another wife by name of Mst. Hayatan and both the wives Mst. Hayatan and Mst.
36. Sat Bhai used to live together in the same house with him. On the night of incident Mst. Hayatan woke up after sometime after the incident. It is surprising that she was also not examined by the prosecution. It is expected that if the eye-witnesses had seen and identified the appellants at the time of incident, they must have informed Mst. Hayatan about the occurrence and must have given her the names of the appellants. P. W. 3 Abdul Karim eye-witness has deposed before the trial Court that Ghulam Muhammad had no other wife and Mst. Hayatan was not the other wife of Ghulam Muhammad. In these circumstances it is difficult to say which witness is to be believed and to what extent.
37. Incident took place on 4th October, 1976 and appellants Mundhoo and Hashoo were arrested on 17th October, 1976 in nakabandi on Baqapur Bridge. Two S. B. Guns and some live cartridges are stated to have been recovered from them. The said guns were not sent to the Ballistic Expert for the obvious reason that no crime-empties were found from the spot. Appellant Muhammad Hassan was arrested on 23rd January, 1977. The learned trial Court has remarked in the judgment that abscondance of the appellants is also a corroborative piece against them. On the other hand the record shows that eye-witness Muhammad Siddiq has testified before the trial Court that Polio had arrested accused persons from Kapar village near Sohbatpur on the next day of the incident. He has further admitted that the accused persons were shown to them after their arrest. Further-more appellant Muhammad Hussain had examined two witnesses in defence namely D. W. 1 Hafiz Bahawal and D. W. 2 Abdul Ghafoor. Hafiz Bahawal has testified that on the night of the incident appellant Muhammad Hassan had come to his village to inform that his son had died and to take him to lead Janaza prayers. He went with him, stayed the night, and led Janaza prayers next morning. Appellant Muhammad Hassan was all along present there. Police came to the vardat the same morning and arrested the appellant Mundhoo and Hashoo. Police did not arrest appellant Muhammad Hassan nor made any enquiry from him. The other witness Abdul Ghafoor has also testified about the death of the son of appellant Muhammad Hassan and the presence of appellant Muhammad Hassan for the night and the next morning when the dead body was buried.
38. He has also testified that Police came in the morning and- arrested Hashoo and Mundhoo but spared Muhammad Hassan. 'The learned trial Court has disbelieved this evidence for the reason that in the evidence of these witnesses it was not clear if the night was same when the incident took place. The perusal of the evidence of these witnesses shows that they were referring to the night of the incident in clear terms and further stated that on the following morning dead-body of the son of appellant Muhammad Hassan was buried after which Police came to the village and arrested appellants Mundhoo and Hashoo but did not arrest appellant Muhammad Hassan. P. W. 8 Ghulam Hussain Investi--gating Officer has admitted in his evidence before the trial Court that on the next day of incident he had gone to the village of the appellants. It is further stated by him that on the night of the incident son of Muhammad Hassan appellant had died but the appellant had run away. He has denied that appellant Muhammad Hassan was present in the funeral ceremony of his son and he did not arrest him. To Court question the Investigating Officer replied that he had not entered this fact about the death of the son of appellant Muhammad Hassan in the diary of the case. The evidence of the defence witnesses cannot be brushed aside without cogent reasons.
39. They were produced by the defence and were not cross-examined by the prosecution except one question to D. W. Hafiz Bahawal, to which he has replied that the houses of appellant Hashoo and Mundhoo are situate in the village of appellant Muhammad Hassan. Of course one or two questions have been put by the trial Court in order to find out as to from what sickness son of appellant Muhammad Hassan was suffering and about his age, etc. But there is no other effective cross-examination to falsify them.
40. The learned trial Court has put excessive reliance upon the evidence of motive as substantial corroboration of prosecution case. It is the case of the prosecution that appellant Mundhoo and Hashoo were sons of Mst. Sat Bhai, who obtained divorce from their father Abdul Ghani, when the appellants were kids and married deceased Ghulam Muhammad and for that reason appellant Mundhoo and Hashoo bore grudge against her for having deserted them and marrying another person. The eye-witnesses particularly P. W. Muhammad Siddiq has deposed before the trial Court that appellant Mundhoo used to live in the house of Ghulam Muhammad while Hashoo did not visit his mother. Eye-witness Abdul Karim has stated that appellants Mundhoo and Hashoo used to visit their mother till they reached the age of 15 years and thereafter they stopped visiting their mother.
41. There is no evidence on the record to the effect that the appellants had extended any threat to deceased Ghulam Muhammad or Mst. Sat Bhai about taking revenge nor the eye-witnesses have said so. It is doubtful whether the appellants would take such a drastic action after such a long time. In any case whether this motive is sufficient or not, is not so much material because of the discrepancies, contradictions and inherent infirmities in the evidence of the prosecution discussed above. The view of the trial Court was not correct in treating the medical evidence as corroborative for the reason that the eye-witnesses do not say that they had seen the appellants in the process of firing from their guns at the deceased persons- In these circumstances and for the reasons given above we hold that, the evidence produced by the prosecution is wanting in quantity as well as quality to be adequate to warrant conviction on a capital charge. It is our considered opinion that prosecution has failed in its duty to bring forth sufficient evidence of incriminating nature to connect the appellants with the commission of the crime. We therefore, give benefit of doubt to appellants and set aside their convictions and sentences, and order that' they be set at liberty if they are not wanted in any other case.