1. ' SADAD ALI SHAH, J.-Appellant Abdul Ghani son of Adam Pitafi has been convicted for offence under section 302, P. P. C. And sentenced to imprisonment for life and a fine of Rs, 3,000 or in default R. I. For 6 months more for having committed murder of Abbas son of Hamzo with gunshot injuries.
2. He has also been convicted for offence under section 13-D of the West Pakistan Arms Ordinance, 1965 and sentenced to R. I. For one year. Since both these cases arise from the same transaction and involve common evidence, we propose to dispose them of with single judgment.
3. ' After hearing the learned counsel for each side on 23rd May, 1979, we had set aside the conviction and sentences of appellant and allowed appeals for reasons to be recorded later, which follow now.
4. ' Appellant was tried along with his four co-accused namely, Moghal, Ali Gul, Younus and Punhoon for offences under section 302/148/149, P. P. C. In the Court of learned 3rd Additional Sessions Judge, Sukkur but only appellant was convicted and sentenced as stated above, while his co- accused were acquitted for inadequacy of evidence against them.
5. ' Shortly stated prosecution case is that Hamzo father of deceased Abbas on one side and appellant and acquitted co-accused on the other belong to the same caste Pitafi and had disputes over matrimonial relations and land. About 4/5 years before the incident Yar Mohammad son of Hamzo was married to Mst. Azizan sister of appellant Abdul Ghani and in exchange Abdul Ghani was promised the hand of Mst. Janat daughter of Hamzo, which was not honoured.
6. Additionally it is alleged that some agricultural land of Hamzo had been forcibly usurped by acquitted accused Younus and others, of which no batai share was given to Hamzo. Incident in this case took place on 12th June, 1974 at dawn time outside the house of Hamzo in a village unnamed near Lal Pitafi taluka Mirpur Mathelo, where Hamzo his son Abbas deceased, Ahmed complainant and Kaloo were sleeping on the cots. It is alleged that at early dawn Hamzo and complainant Ahmed got up for prayers, when they saw appellant and four acquitted accused reaching there duly armed. Appellant Abdul Ghani, Younus and Punhoon had guns, while Moghal and Ali Gul were armed with hatchets. Younus demanded as to why Mst. Janat was not being married to Abdul Ghani, upon which Abbas son of Hamzo interjected to ask as to why they were not handing back possession of the agricultural land illegally occupied by them. This infuriated Younus who instigated his other associates not to spare Abbas and in compliance Abdul Ghani fired a shot from his gun at Abbas, who fell down injured and died at the spot. The assailants thereafter bolted from the scene of offence. Incident was witnessed by Ahmad, Kaloo and Hamzo, who on finding Abbas dead raised cries which attracted to the spot Yar Mohammad, Ahmed son of Sher Mohammad and others, who saw culprits running away from vardat. Leaving others near the dead body complainant Ahmed repaired to police station Khanpur Mehar at a distance of 17 miles, where his report was lodged at 10-00 a.m. On the same day i,e,, 12th June, 1974. Since incident took place in the area of police outpost Yaro Lund, A. S. I. Khadim Hussain of that outpost was called and entrusted investigation, who went and inspected the scene of offence at the pointation of complainant. Dead body was sent to mortuary for autopsy and blood-stained earth was secured and parcelled. Inquest report and inspection memo were prepared. S. H.
0. Zamir Hussain Shah of Police Station, Khanpur came to the vardat and took over the investigation. On 17th June., 1974, he arrested Abdul Ghani, Moghal and Ali Gul. Abdul Ghani was arrested from the bridge of Dahar Wah and was found carrying a 12 bore S. B. Gun and two live cartridges which were seized. He had no licence for the gun. Separate report under the Arms Ordinance was lodged against him. No weapon was recovered from the other co-accused. Younus was not arrested as he had obtained anticipatory bail. After completion of investigation challan was presented.
7. ' Prosecution examined 11 witnesses in support of its case. P. W. I Hamzo and P. W. 2 Ahmed complainant have been examined as eyewitnesses of the incident. Another eye-witness Kaloo, who is named in F. I. R., could not be examined as he had migrated to Saudi Arabia and his whereabouts were not known. P. W. 3 Allah Dino constable is corpse-bearer. P. W. 4 Ahmed son of Sher Mohammad has attested mashirnama of vardat Exh. 11 and inquest report Exh.
12. P W. 5 Ghularn Rasool mashir of arrest and recovery of gun from Abdul Ghani did not support prosecution case and was declared hostile. P. W. 6 Mohammad Anwar Tapedar prepared and produced sketch of vardat Exh. 16, P. W. 7 Khadim Hussain and P. W. 8 Zamir Hussain Shah are police officials who took part in the investigation. P. W. 9 Shamir is W. H. C. Who scribed F. I. R. P. W. 10 Ali Nawaz constable reported migration of P. W. Kaloo to Saudi Arabia. P. W. 11 Dr. Bhajan Lal conducted post-mortem examination on the dead body of Abbas and testified that death was due to the gun-shot injuries sustained by deceased. Report of Chemical Examiner Exh. 20 is to the effect that earth was found to be stained with human blood.
8. ' Appellant in his 342, Cr. P. C. Statement has denied prosecution allegations and proclaimed innocence and false implication due to enmity. No witness was examined in defence.
9. ' Mr. Mohammad Hayat Junejo, counsel for the appellant has stoutly criticized the evidence of prosecution. It is contended by him that the two eye-witnesses examined iri this case are not only interested and partisan but are admittedly inimical to the appellant, as such their evidence requires very strong corroboration emanating from independent sources to sustain the conviction.
10. It is indisputable that the incident took place outside the house of P. W. Hamzo, who is also father of deceased Abbas as such he can be natural witness but the same thing cannot be said about P. W.
11. 2 Ahmed who happens to be son-in-law and nephew of P. W. 1 Hamzo but resides at a distance of one mile from vardat as is admitted by P. W. 1 Hamzo in his deposition. Complainant Ahmed has also given strained explanation rather voluntarily in F. I. R. To prove his presence at the spot at the time of occurrence. He had stated that on the preceding day of the incident he had gone to Jarwar town for purchasing provisions and while he was returning along with his shopping and reached near the house of P. W. 1 Hamzo, the night fell hance he went to the house of his father-in-law and stayed overnight. He took dinner with eye-witnesses and the deceased and all went to sleep on the cots outside the courtyard of the house of Hamzo. At dawn time he and Hamzo woke-up to offer morning prayers when assailants came there and the incident took place. This explanation of the complainant appears to be out of tune and does not inspire confidence. The complainant had to give a very convincing story to prove that he was present at the spot at. Dawn time when the incident took place near the house of his father-in-law, when ordinarily he was not likely to be present there as he himself resided at a distance of about one mile from there. That is why this explanation appears in F. I. R. As to how complainant came to be present outside the house of P. W.
12. Hamzo at the time of incident. Secondly P. W. Hamzo, father of deceased did not go to the police station for report but complainant Ahmed had to go all the way to Police Station, Khanpur Mehar at a distance of 17 miles from vardat when police outpost Yaro Lund, in the area of which incident took place, was available at a distance of five miles from the vardat as admitted by P. W. 7 Khadim Hussain A. S. I. In his testimony before the trial Court. There is no explanation on the record as to why the complainant did not go to the outpost where A. S. I. Khadim Hussain was posted as Incharge and who in fact was called at police station Khanpur Mehar and was handed over the.
13. Investigation because the incident took place in the area of his outpost. In the absence of any plausible expiation an inference can be drawn that sufficient time was required to manipulate the story as report has been shown to have been registered at 10-00 a.m. When the distance involved was 17 miles. Had the complainant gone to the police outpost at a distance of five miles F. I. R.
14. Would have been lodged much earlier and that could not have given as much time to the coiriplainant for the purpose stated above. There is lingering doubt attached with the story of incident as put forward by the prosecution because as deposed by the complainant he took meals along with the eyewitnesses and then he, deceased Abbas, P. W. Hamzo and Kaloo went to sleep on the cots outside the house of Hamzo. This assertion is falsified by medical evidence which reveals the fact that semi-digested food was found in the stomach of deceased. This fact is inconsistent with the prosecution case that incident took place at early dawn time at the time of `Fajar' prayers. Had it been so and the assertion was correct that food was taken by the deceased and the eye-witnesses before going to sleep, then during the post-mortem examination food could not have been found to be semi-digested. This tends to show that incident did not take place at dawn time but in the middle of the night. Both complainant Ahmed and P. W. Hamzo claimed that they were awake when the assailants came and acquitted accused Younus demanded of Hamzo as to why his daughter was not being married to Abdul Ghani upon which Abbas came and interjected as to why the assailants were not giving up the possession of their land which was illegally occupied by them and since they were not surrendering the possession of their land, his sister could not be married to Abdul Ghani. This proves that complainant must have got up from his cot and come forward to speak to the assailants. It is the case of the prosecution that at the instigation of Younus, Abdul Ghani fired from his gun at Abbas who fell down injured and died. This further proves that incident took place away from the cot of the deceased but strangely mashirnama of vardat and inquest report show that dead body of Abbas was lying supine on the cot with gunshot injuries which had bled. To make it more mysterious, Investigating Officer Khadim Hussain had deposed that he took the blood-stained earth from the spot and put it into a sealed parcel. He does not specifically say as to from which place of the vardat the earth was recovered to pin-point the actual place where injuries were caused to Abbas. P. W. 4 mashir Ahmed son of Sher Mohammad has also stated that blood was secured from the place of vardat but does not specify the actual place where blood was found to be lying. In the mashirnama of vardat Exh. 11 it is stated that blood-stained earth of scene of offence was secured and taken by police. It appears that there is a deliberate attempt to hide this further detail as to where blood was found lying at the vardat. It is not the case of prosecution that the dead body of deceased was lifted from the ground and put on the cot. From this an inference can be drawn that dead body of Abbas was found lying on the cot by the eyewitnesses and the incident was un witnessed. Additionally there is conflict between inquest report and sketch which show different positions of the cost of deceased and eye-witnesses at the time of incident. Inquest report Exh. 12 shows that cot of deceased was lying towards south and that of Ahmed opposite to it towards North. Cots of Hamzo and Kaloo were lying towards East and West. As against this in the Sketch No, 16 it is shown that cot of deceased was at 'A' and cot of Hamzo was at a distance 8 feet at point 'D' towards house of Hamzo and cot 'C' of Ahmed complainant and cot 'D' of Kaloo were lying in straight line with cot A of the deceased.
15. This shows that prosecution witnesses were not certain as to where the cots were lying.
16. ' These inherent infirmities in the evidence of these two eye-witnesses throw doubt on the veracity of these witnesses. On the top of that both these eye-witnesses who are closely related to the deceased have stated in their cross-examination before the trial Court that at the time of incident it was dark and the faces of assailants were muffled. They have further stated that only acquitted accused Younus spoke and categorically admit further that they identified the assailants on suspicion. It is further stated by them that the faces of assailants were muffled and only the eyes were visible. Strangely enough these two star witnesses of prosecution were not declared hostile and were not cross-examined. This shows that prosecution did not challenge their evidence as they gave. The learned trial Court has held that these were concessions made by these witnesses in their cross-examination which are favorable to the accused party, hence on the basis of sifting of grain from chaff the concessions made by these witnesses were to be ignored and their statements in their examination-in chief should be believed as truthful. There is no cavil with regard to the proposition which is fully settled and supported by numerous judicial pronouncements that evidence can he assessed by way of sifting truth fro falsehood but it has to be done in the totality of concomitant circumstances of the case. The facts and circumstances of each case vary from the A other. Such gratuitous concessions made by the witnesses in their evidence are to be considered not only in the context of their evidence as whole but also other attending circumstances of the case and also other inherent infirmities and shortcomings in the evidence of prosecution. It is the cumulative effect of evaluation which is to be counted. The law lays down that if a witness does not support the prosecution case he is to be declared hostile and cross-examined and his attention must be drawn to the inconsistencies in his evidence so that he may be able to give explanation. If the witness is not declared hostile, it means that prosecution does not challenge his statement as it is recorded. We therefore find ourselves unable to agree with the learned trial Court that in the instant case the concessions made by the two eye-witnesses favorable to the accused are to be ignored when the whole prosecution case is replete with inherent defects and inconsistencies.
17. Motive is a ,double-edged weapon particularly when there is background of enmity between the parties. If enmity is considered to be sufficient to motivate the accused to commit offence, it is also sufficient to B consider as providing an opportunity for false implication when there is doubt that th.t incident is unwitnessed crime. At this stage it would be pertinent to point out that apart from the fact which is commonly admitted by P. Ws. Hamzo and Ahmed that sister of Abdul Ghani was married to Yar Mohammad son of P. W. Hamzo and Mst. Janat daughter of Hamzo was promised to be married with Abdul Ghani in exchange and the latter marriage did not take place, it is submitted by both these witnesses that Younus acquitted co-accused had taken forcibly possession of the agricultural land belonging to Hamzo. In addition to this P. W. Hamzo, father of deceased Abbas, has admitted in his cross-examination that his cousin Mohammad was murdered about 15 years before the incident in which Adam and Mevo brothers of acquitted accused Younus and Saleh, father-in-law of Younus were challaned as accused. It is further admitted by this witness that Mehar, uncle of P. W. Kaloo was murdered in which Younus and his nephew Manjhi were accused.
18. Further Mevo brother of acquitted accused Younus was murdered in which case P. W. Hamzo was accused alongwith others. With this background of enmity between the parties possibility of false implication cannot be ruled out particularly when the evidence of the alleged eye-witnesses is not above-board.
19. ' There is no other corroborative evidence available with the prosecution. No crime-empty was recovered from the spot to be connected with the gun allegedly recovered from present appellant Abdul Ghani No other weapon was recovered from any of the four co-accused who were acquitted by the trial Court. These co-accused were acquitted by the trial Court for the reason that evidence of the two eye-witnesses was not considered to be sufficient and corroboration was looked for which was not available. Similarly corroboration was found against the present appellant in the shape of recovery of gun from him is also not incriminating in nature to connect him with the commission of crime. It is the case of the prosecution that incident took place on 12th June, 1974 and appellant Abdul Ghani was arrested on 17th June, 1974 which is after five days of the incident. It is stated that appellant Abdul Ghani was arrested from Jungle where he was found carrying a gun and two live cartridges for which he had no license. It is not understandable as to why appellant Ghani could not get rid of this gun when he had sufficient time of five days at his disposal. In any case P. W. Ghulam Rasool who was made mashir of this recovery has not supported the prosecution case and was declared hostile. There was no other co-mashir excepting Khadim Hussain A. S. I. Appellant Abdul Ghani was arrested by another Investigating Officer namely Zamir Hussain Shah P. W. 7 Khadim Hussain A. S. I. While deposing before the trial Court has stated that on 17th June, 1974, he was with S. H.
0. In the investigation when accused Abdul Ghani was arrested from his house. In the same breath he corrected himself and said that he was arrested from Dahar Wah and he was found along with a single barrel gun and two live cartridges. In the cross-examination this witness has stated that Abdul Ghani was arrested from Jungle and mashir Ghulam Rasool was found standing there at that very time hence he was joined in the investigation and made as mashir. Other man from the public was not available to be joined in the investigation as co-mashir. As against this S. H.
0. Zamir Hussain Shah has testified before the trial Court that all the accused persons in this case with the exception of Younus were arrested by him on 17th June, 1974 but only the times were different and mashir Ghulam Rasool and A. S.
1. Khadim Hussain were present at the time of all these arrests. This witness has further stated that Abdul Ghani was arrested from the bridge of Dahar Wah at a distance of seven miles from village Lal Pitafi, Mashir Ghulam Rasool lived in Lal Pitafi.
20. ' Mashir Ghulam Rasool was with him during the investigation. In these circumstances, no sanctity can be attached to this piece of evidence which is not incriminating in any way to connect appellant Abdul Ghani with the commission of crime. Consequently we view this piece of evidence also with great doubt.
21. In view of what is stated above, it is our considered opinion that prosecution has failed in its duty to prove the case against the appellan c beyond doubt and we give him benefit of doubt and set aside his conviction'' and sentences and acquit him.