Z. A. CHANNA, J.----The two appellants, who are brothers inter se, were tried by the learned Sessions Judge, Dadu, on a charge under section 302/34, P. P. C., for allegedly committing the murder of Allahwarayo, and each of them have been sentenced by the learned Sessions Judge, by his judgment delivered on 6-10-76, to imprisonment for life and also to pay a fine of Rs. 1,000 in default of payment of which, each of them was to suffer R. I. For one year.
2. The prosecution case; shortly stated, is that some 7 or 8 months prior to the incident which has given rise to the present case, deceased Allahwarayo bad sustained injuries at the hands of the two appellants, for which incident the appellants were challaned in the Court of the learned Civil Judge and F. C. M., Mehar. The hearing of that case was fixed before the learned Civil Judge on 20- 10-1975. The parties attended the Court of the learned Civil Judge on that date but the case did not proceed. However, it is alleged that the deceased was approached by the appellants to settle the matter, but as he refused to do so, they threatened him with dire conse--quences, and hence the deceased is said to have made application to the Court complaining against the conduct of the appellants. After the hearing in that case had been adjourned, the deceased set out from Mehar, along with Mohammad Achar, Mohammad Hassan and Shahmir, for his village, which was about 9 miles away. When they had covered a distance of about 7 miles, and were near a village of Khosas, the deceased, who is stated to have been walking about 20 paces ahead of his companions, is alleged to have been attacked by the 2 appellants, who emerged from biding from amongst Lai bushes which lined the canal path upon which the party of the deceased was proceeding.
According to the first information report, each of the appellants is said to have given a hatchet blow to the deceased on the head, in consequence of which he fell down, The appellants are then stated to have made good their escape. The witnesses were unable to prevent their escape as the appellants were armed while the witnesses carried no weapons. A cot was thereafter sent for from the Khosa village nearby and the injured was carried thereon towards Mehar town, but on the way, near village Kazi Arif, he expired. The first informant then proceeded to Mehar Police Station, where he lodged his first information report at 21-30 hours, the incident itself having occurred at 5-30 p.m.
The F. I. R. Was recorded by A. S. I. Mohammad Hafizullah Shah.
3. Both the appellants were arrested by A. S. I. Hafizullah shah on 22-10-1975. Appellant Nawaz Ali is stated to have produced one blood. Stained hatchet from the beddings in his house. It was seized by the A.S.I. In the presence of mashirs. Similarly, appellant Sanwalo produced a blood stained hatchet, in the presence of mashirs, from a mat in his house. It may be pointed out that both the appellants, being brothers, were putting up. Together. The two hatchets were sent by the Police to the Chemical Examiner to the Government whose report is to the effect that human blood was found on the two hatchets.
4. The direct evidence in the case is furnished by first informant Mohammad Achar, Mohammad Hassan and Shahmir. Mohammad Achar is the Phoophat of the deceased. P. W. Mohammad Hassan is the uncle of the deceased, while P. W. Shahmir is a caste-fellow of the deceased but not directly related to him. All of them claim to have been with the deceased at the time of the fatal assault on him and have testified that within their sight each of the appellants had given a hatchet blow to the deceased on the head. We are not impressed with their testimony. Their reason for being in the company of the deceased at the time of the incident is far from convincing. According to them they had gone with the deceased to attend the hearing of the case in the Court of the learned Civil Judge at Mehar as they were witnesses in that case, However, P. W. Mohammad Hass" has admitted that he was not a witness in that case. There is thus no plausible reason for his having accompanied the deceased to Mehar. We are accordingly; inclined to doubt the fact that be was with the deceased at the time of the incident. So far as P. Ws. Mohammad Achar and Shahmir are concerned, though undoubtedly they were witnesses in the assault case which was pending at the time of the incident in the Court of the learned Civil Judge and F. C. M Mehar, it appears from the evidence of P. W. Ahmed Ali Clerk of the learn Civil Judge and F. C. M., that the evidence of Achar was recorded prior to date of the present incident while the evidence of the remaining witnesses W recorded subsequent to the date of the present incidence. Furthermore, the dl of the case before the learned Civil Judge for 20-10-1975 shows that no P.Ws were in attendance on that date and consequently the case had to be adjourn The witnesses, realising this position, have tried to show that they accompanied the deceased to afford him protection, as he was afraid of being waylaid and attacked by the appellant. If this had really been so, the witnesses would h been armed and being 3 in number, excluding the deceased, they would have been able to overpower the assailants of the deceased and to apprehend at least one of them. Their admission that they were unarmed suggests that the story about their accompanying the deceased to protect him from attack is not founded upon truth and cannot be seriously considered. Lastly, it may be mentioned that according to the witnesses they were walking about 20 paces behind the deceased. They would hardly have done so, specially in a place which was overgrown with lai hushes, thereby providing an ideal place for a sudden assault, if their purpose in going to Mehar was to provide protec--tion for the deceased. However, the circumstance which completely demolishes the prosecution case and demonstratively establishes that the witnesses are not telling the truth is the fact that their testimony is in conflict with the medical evidence. As already indicated, according to the eye-witnesses, each of the appellants had inflicted a hatchet blow to the deceased on the head. The medical evidence, however, is contrary and shows that there was only the following injury on the person of the deceased, which clearly had been caused with a single blow from a sharp cutting weapon, such as a hatchet:-- "An incised wound, 3" x --" cutting the underneath bone on left parietal region, Brain matter lying outside."
5. The learned Sessions Judge took the view that there were 2 injuries on the head of the deceased, one over the other, and was pursuaded to this view by reason of the mashirnama of the injuries on the deceased which was prepared by the Police. We are unable to prefer this mashirnama as against the testimony of the Medical Officer which clearly shows that there was but one injury caused to the deceased. We think that it is most unlikely that 2 different persons can strike a hatchet below on their victim in exactly the same spot in such a manner that even to a trained observer it would not be evident that 2 blows have been struck. Even if we were to accept the word of the witnesses that both the appellants struck the deceased on the same spot of the head, the two resulting injuries, in all probability, would have had some variations both as to their length, and depth and there would have been some crossing of the two blows, which would have indicated that the injuries were the result of 2 separate blows and not one blow.
6. The next piece of evidence connecting the appellants with the murder of deceased Allahwarayo is the production by them of bloodstained hatchet from their joint house. This piece of evidence even if believed, by itself does not connect the appellants with the murder, as there is nothing to show that the weapons secured from their house were used in the murder of Allah Warayo. If the hatchets were in fact recovered from the appellants and were stained with human blood, as is the prosecution case, the possibility of the hatchets having been used in some other incident cannot be excluded, in the absence of evidence as to the use of these weapons in the present incident.
7. Finally, though there was undoubtedly enmity between the deceased and the appellant, as is evident not only from the fact that the decease had filed an assault case against them, but also from the application that the deceased had made against the appellant on the very day of his murder and which was forwarded by the learned Civil Judge to the police for taking necessary legal action, but from the mere fact that the appellants were inimical to the deceased and bad on certain occasions even given him threats to kill him, no conclusion can be drawn that they are responsible for the murder of the deceased. The two circumstances of motive and the recovery of blood stained hatchets from the possession of the accused are, in our opinion, the totally insufficient to establish the guilt of the appellants.
For the reasons stated by us above, we are of opinion that the prosecu--tion have failed to establish the guilt of the appellants. We would according accept this appeal, set aside the conviction and the sentence of the appellants and direct that they should be forthwith set at liberty if not required in any other case.