1. S. SAJJAD ALI SHAH, J.---Appellants named above have filed this appeal under section 410, Cr. P.
2. C. Against the judgment of the IInd Additional Sessions Judge, Larkana, dated 20th July 1977, whereby they have been convicted under section 302/149, P. P. C. And sentenced to imprisonment for life and a fine of Rs. 1,000 each, in default of payment whereof a further R. I. For two years each.
3. Briefly prosecution story is that the above-named three appellants along with their other three confederates, namely Saleh alias Muhammad Sallah and Mevo son of Ismail (both, acquitted in this case by the trial Court) and Niazoo alias Niazal (died during the trial proceedings) all by caste Magsi, formed an unlawful assembly while armed with deadly weapons' such as hatchets and in furtherance of their common object committed murder of Ismail by inflicting injuries on him with the said weapons on 23-10-1975 at 1-00 p.m. Near Rice Factory of Khadim Hussain Langah in Shahdadkot Town. Niazoo alias Niazal was farther charged under section 379, P. P. C. For having stolen the licensed gun of deceased Ismail at the time of the said occurrence.
4. It is alleged that on the day of the incident, mentioned above, deceased Ismail and three eye- witnesses related inter se namely Hassan Ali complainant, P. W. 3 Muhammad Yakoob, P. W. 4 and Lutf Ali P. W. 5, were returning from the Court of Civil Judge and F. C. M., Shahdadkot, after attending the hearing of a murder case, which was adjourned and in which they were accused, having been released on bail and when they reached near the Rice Factory of Khadim Hussain in Shahdadkot Town, they were encountered by the opposite-party of six comprising three appellants, Peeral, Nabu and Meeral along with their fourth companion Niazoo armed with hatchet, while Mevo was armed with lathi and Sallah was empty handed. It is alleged that Sallah grappled with deceased Ismail, who armed with his licensed gun, was walking ahead of the three eye-witnesses, while the remaining five appellants and co-accused attacked him with hatchet and lathi blows and killed him. While the attack was on, the eye-witnesses were kept at bay with threats in spite of their protest and cries. Before the departure of assailants Niazoo took away the gun belonging to the deceased. Cries attracted so many persons to the spot but none interfered. Complainant Hassan Ali leaving P. Ws. Muhammad Yakoob and Lutf Ali to guard the dead body, went to police station, Shahdadkot, where he registered F: T. R. Exh. 7 at 1-15 p.m. The distance between the spot and police station was about three furlongs.
5. The motive, as stated in the F. I. R., is that about a year and half ago, one Ali Gohar son of Sono Khan was murdered in which case deceased Ismail, his cousin, complainant Hassan Ali, .And nephews, Yakoob and Lutf Ali, were arraigned as accused. After release on bail in that case, they shifted their residence from taluka Miro Khan to District Sanghar because of the fear of opponents Meeral and others who being near relatives of Ali Gohar were bent upon taking revenge. It was further stated that deceased Ali Gohar was uncle of accused Sallah and Naban, maternal uncle of Niazoo and masat of Peeral.
6. During the investigation A. S. I. Raza Muhammad P. W. 9 inspected the scene of offence, prepared mashirnama of vardat, inquest report, secured blood-stained earth, cap and a bag containing two live cartridges and licensed gun of deceased Ismail from the spot. Dead body was sent to the hospital, where post-mortem examination was performed. On 25-10-1975, the Investigating Officer arrested appellants Meeral and Naban and co-accused Niazoo, Mevo and Sallah on Noorpur Bridge. Niazoo was in possession of gun belonging to deceased Ismail, which was secured and sealed. Appellant was arrested on the same day from village Muhammad Murad Magsi. In presence of mashirs Arbab and Sanwal, Appellant Meeral, while in custody led to the recovery of blood-stained hatchet, shirt and loin-cloth, Naban produced from his house hatchet, shirt and loin-cloth, stained with blood, while Sallah produced from his house blood-stained shirt and loin- cloth. After completing the investigation, the case was finally challaned on 7-11-1975.
7. Mr. Azizullah Shaikh, counsel for the appellants, while arguing the case at the very outset pointed out to us that in the impugned judgment the relevant sections under which conviction is made and sentence pronounced, are not mentioned in proper form. In the concluding paragraph of the impugned judgment at page 93 of the paper book, it is noticed that the learned Additional Sessions Judge has announced the order of conviction and sentence without mentioning the relevant sections. It is mandatory under section 367, subsection (2), Cr. P. C. To specify the offence and the section of P. P. C. Or any other law under which the accused is convicted and the punishment to which he is sentenced. Although from reading of the impugned judgment as a whole, it appears that the conviction and sentence was intended to be made under section 302/149, P. P. C., but' as a matter of abundant caution, the requirements of the law must be fulfilled and in the conclusion paragraph of the judgment the relevant sections under which orders of conviction and sentence are proposed to be passed must be specifically mentioned notwithstanding the fact that such omission is curable under section 537, Cr. P. C.
8. The impugned judgment is assailed before us on the ground inter alia that the evidence produced by prosecution was not properly evaluated by the trial Court and is insufficient to warrant the conviction and sentence. The record of evidence shows that the three pivotal witnesses who have given direct evidence are closely related to the deceased. P. W. 3 Hassan Ali complainant is cousin of deceased while P. W. 4 Muhammad Yakoob acid P. W. 5 Lutf Ali are nephews of complainant. On that score these witnesses pan be termed as interested witnesses particularly when there is recorded en pity between the parties and these witnesses along with the deceased had been named as accused persons in a case in which Ali Gohar, a relative of the appellants, had been murdered and the case is pending. The appraisal of their evidence is indicative of the fact that these witnesses have not spoken the whole truth. These three eye-witnesses have consistently stated that Meeral, Peeral, Naban and Niazoo were armed with hatchets, that Mevo had a lathi while Sallah was empty-handed and that Sallah caught hold of deceased Ismail and grappled with him while the remaining assailants gave hatchet and lathi blows to Ismail. Furthermore, these witnesses have specifically-stated that Mevo repeatedly inflicted lathi blows on Ismail. This fact of infliction of lathi blows by Mevo is, belied by the medical evidence which shows that no injury was caused to the deceased by a blunt-weapon. Secondly, the assertion that Sallah caught hold of Ismail and grappled with him while the remaining assailants showered blows on him with weapons, is neither substantiated nor pre se appeals to common sense. It does not appear convincing that the deceased would continue to be held in grip by Sullah while other assailants were giving him blows. Had it been so, Sallah, who was playing the part of grappling, would also have received some injuries. There is one other important factor which attracts attention.
9. Deceased Ismail is stated to be armed with his licensed gun which he was carrying at the time of incident and was walking ahead of the eye-witnesses. The circumstances are not at all explained by the eye-witnesses as to now the assailants in the beginning dealt with the deceased and relieved him of his gun. It is natural that the first thing the assailants could possibly do was to see that deceased was disarmed and since that was done and he was deprived of his gun, then there was no point in any one of the assailants grappling with him and holding him to facilitate infliction of hatchet and lathi blows by other persons. The medical evidence also shows the following injuries on the person of deceased :-
(1) One incised wound 6" x 2" x bone deep on the left side of the face and neck (maxillary bone cut vertibral column cut).
(2) One incised wound 2" x ----- x bone deep x (occipital bone) on left side occipital region.
(3) One incised wound 2" x 1 /2" x skin deep on upper part of left shoulder.
(4) One incised wound 2" x 1/4" x skin deep on left upper arm.
(5) One incised wound 2--- x 1/4" x skin deep just above of left illiac bone.
(6) One incised wound 4" x 1/4" x skin deep on left side of chest.
(7) One incised wound 3" x 1/4" x skin deep on the left upper arm.
10. It appears from the medical evidence that the deceased has sustained seven incised wounds, which are all on the left side of the body, which goes a long way to suggest that with the first blow the deceased had fallen down side ways on the right side and left side of his body was exposed on which other injuries have been inflicted, and furthermore that the deceased was helpless and could .Not stir or struggle, otherwise he could have received injuries on the other parts of the body on right side also. In the absence of any explicit explanation, it can safely be presumed that the eye-witnesses might be either lagging behind sufficiently so as not be able to see the incident as it took place or they were not with the deceased at all and might have settled with the deceased to meet him at the bus stand subsequently as suggested by the counsel for appellants.
11. The mere fact that the true copy of the diary recorded by Civil Judge and F. C. M., Shahdadkot which was produced by Bashir Ahmed, Clerk of the Sessions Court shows that on 23-10-1975, deceased and all the three eye-witnesses were marked present in that case as accused on bail does not necessarily prove that the three eye-witnesses mentioned above were present at the spot and saw the incident.
12. We are, therefore, impelled to hold that the evidence of the eye-witnesses does not inspire confidence and is not free from doubt in the circumstances as stated above. We are also not convinced with the veracity of P. W. 8 Arbab who is the only mashir examined in this case. He has attested all the mashirnamas of recoveries of various articles and also that of vardat. 6 As contended, he does not appear to be an independent witness or a resident of the locality, for the reason that he does not belong to the locality and as admitted by him he resides in Jacobabad which is 60 miles away from Shahdadkot town where occurrence took place. Secondly, as per his own evidence, he is a businessm an and has been on visiting terms with the complainant and possibility cannot be ruled out, as suggested by the counsel for the appellants, that this witness was offered by complainant to the police to act as mashir. In fact it is so admitted by complainant Hassan Ali. Even otherwise it appears strange that in the heart of the town of Shahdadkot where the incident took place in broad daylight near crowded-- area, no other person was selected to act as mashir who belonged to that area, particularly when so many persons assembled there after the incident, but a complete stranger from Jacobabad who happened to pass by would be selected as mashir at the instance of complainant. The evidence is contradictory on the point as to how he came to the spot. Eye-witnesses say that he came himself to the spot after the incident, while mashir says that he was picked up by police from the patrol pump. The second Masher Sanwan who was with Arbab and who happens to be a caste-fellow of the complainant was not examined.
13. Masher Arbah has admitted that the mashirnama was prepared at vardat but his signature was obtained at the police station. Ht another place he has stated that police had taken the signatures on all the mashirnamas at the vardat and not at the police station. He has also stated that all the accused produced their blood-stained articles separately and produced the same at about 15 to 20 paces from their houses where he was standing with the police. This fact contradicts the mashirnama of arrest and recoveries according to which all the accused persons were found sitting at the Noorpur Bridge and from whom Niazoo was armed with a gun belonging to the deceased which was secured from him and subsequently after the arrest the accused persons led to the recoveries of their weapons used in the crime, from their houses, which were blood--stained, and therefore seized and put into sealed parcels. In such circum--stances, we could discard the evidence of this mashir and rely upon the evidence of the Investigating Officer, but do not feel inclined to do so for the reason that the occular testimony is doubtful and we fail to find any support from other independent circumstances. The record of evidence indicates that possibility cannot be ruled out that the F. I. R. Was registered after investigation had commenced. P. W. 4 Muhammad Yakoob eye--witness has stated that police came to the vardat and then the Sub- Inspector sent for a taxi jeep. P. W. Lutf Ali has stated in his cross-examination that he went away with the dead body of Ismail to the hospital, from there he went to the police station where the Sub-Inspector made inquiries in his presence from complainant Hassan Ali and then recorded the F.I.R. On the other hand P. W. 9 Raza Muhammad Sub-Inspector has stated in his examination-in- chief that after registering the F.I.R. Of Hassan Ali he proceeded to vardat in presence of mashirs Arbab and Sanwan, while complainant says that he offered mashirs Arbab and Sanwan at the spot. Investigating Officer further states that he prepared inquest report of dead body and sent it to the hospital for post-mortem examination. There--after he recorded the statements of P. Ws. Lutf Ali and Muhammad Yakoob at the spot. The Investigating Officer in his cross-examination has admitted that he had borrowed a jeep from Nawab Qaisar Khan Magsi and Nawab Qaisar Khan Magsi was with him in the jeep when he went to arrest the accused persons. In such circumstances, it is surprising why this Nawab Qaisar Khan Magsi, who is of the same caste as that of complainant and eye-witnesses, was not made a mashir in place of mashir Arbab. It also appears from the evidence that the Sub-Inspector had come to the scene of offence in the jeep and doubt cannot be brushed aside that the investigation might have commenced in consultation with Nawab Qaisar Khan Magsi and thereafter the F. I. R. Was lodged.
14. On the point of motive also the evidence produced by the prosecution is not satisfactory and convincing in the sense that there is no doubt about the fact that relations between the complainant party and the appellants are very strained and the complainant party is being tried for a murder case in which the appellant party are appearing as complainant and prosecution witnesses, but this fact alone does not induce us to say, in the absence of convicting evidence, that Ismail deceased in this case was done to death in the manner in which the occurrence is said to have taken place by the prosecution. Possibility cannot be ruled out that one or two or three of the appellants and their co-accused might have made an attack on the deceased or some other persons might have done so and-because of enmity the present appellants are being involved.
15. The evidence produced by the prosecution is not satisfactory and it may be mentioned here that the learned trial Court, not believing the direct evidence, had acquitted co-accused Sallah and Mevo who were alleged to have grappled with deceased and inflicted lathi blow respectively, hence when the ocular testimony was doubtful in respect of the involvement of the two co- accused, it can be held to be doubtful in respect of all the appellants at least so far the manner is concerned in which incident is alleged to have taken place. Nazoo alias Niazal had already expired during the pendency of the proceedings before the trial Court. Mr. Hassan Inamullah appearing for the State does not support the prosecution case. We are, therefore, firmly of the view that evidence produced by the prosecu--tion is insufficient and unsatisfactory to warrant conviction and sentence.
16. We, therefore, give benefit of doubt to the appellants, and allow the appeal and set aside the order of conviction and sentence. The appellants, if not required in any other case, may be released forthwith.