1. ' DORAB PATEL, J.-Ghulam son of Allah Warayo was murdered in Kaman village in Sanghar District
(Sind) on 26-11-1972. The first appellant is the son of one Kauro and the second appellant is Kauro's son-in-law. These appellants together with Soomar, the brother-in-law of Kauro, were tried for this murder in the Sessions Court, Sanghar.
2. ' According to Allah Warayo, a day before this murder, Kauro had told Ghulam not to come to his village as he was a bad character. This had led to an altercation between Ghulam and Kauro.
3. Therefore the next day the appellants came armed with hatchets together with Soomar to Allah Warayo's land to attack Allah Warayo. Allah Warayo ran for his life and as he reached Kaman village he saw his son. So did the assailants and on seeing Ghulam, Soomar instigated the appellant to attack Ghulam. Thereupon Allah Warayo raised cries which attracted Ghulam Kadir, Gohram and Mehro, but the two appellants managed to attack Ghulam with their hatchets.
4. Ghulam fell down and died shortly afterwards. Then, according to Allah Warayo "I ran and accused Rasool Bux was hauled up while the other accused and Soomar and Hussain Bux ran away. Gullu, Bachu and Hyder surrounded me Wadero, Subhan Ali challenged them not to attack me. They then ran away. Gullu and Bachu are sons of Kauro and Hyder is nephew of Kauro." Allah Warayo then went on foot to the Tando Adam Police Station and lodged the F. I. R. After which the usual investigations commenced.
5. ' As the first appellant had been apprehended at the place of the murder, he was produced before the Police Officer by the eye-witnesses and one Lal Muhammad witnessed the first appellant's arrest. The police then arrested the other accused, and it is sufficient to state here that according to the prosecution the second appellant also produced the hatchet used by him in occurrence and after investigations were completed, the three accused were tried for muder by the learned Sessions Judge, Sanghar.
6. ' The prosecution examined Allah Warayo, the father of the deceased to prove his son's murder.
7. Mehro, Ghulam Kadir and Gohram were also examined as eye-witnesses of the occurrence, and they supported Allah Warayo's evidence, and as both the Courts were impressed by this evidence, it is relevant to observe that the three eye-witnesses were closely related to Allah Warayo. And on the other hand, although Allah Warayo admitted that Wadero Subhan Ali was a witness of the occurrence and that many other people had come "on my cries" the prosecution did not examine any independent witnesses. However, the prosecution relied on evidence of motive and on the evidence of the recoveries, because the hatchets of both the appellants were proved to be stained with human blood. As the prosecution also relied on medical evidence, I would explain here that Dr. Muhammad Ismail, who carried out the post-mortem of the deceased, said that the deceased had five injuries and that the fatal injuries had been caused by a blunt weapon, such as the back side of a hatchet. Dr. Muhammad Ismail had also examined the first appellant and said that this appellant too had five injuries which were simple and "appeared to have been caused by a hard substance like a Sathi".
8. ' All the accused pleaded their innocence. They did not produce any evidence in their defence but the appellants denied having produced the hatchets. Finally the first appellant said that the injuries to him have been caused by the police.
9. ' The learned Sessions Judge was impressed by the evidence of the eyewitnesses and by the evidence of motive. However, although all the eyewitnesses had implicated Soomar, the learned Sessions Judge held that the prosecution had failed to prove Soomar's guilt and he acquitted Soomar. But he convicted the appellants for murder. However, as according to the medical evidence, four out of the five injuries to the deceased had been caused by a blunt weapon, such as the back side of a hatchet, the learned Sessions Judge gave the benefit of the lesser sentence to the appellants.
10. ' The appellants filed an appeal in the Sind & Baluchistan High Court against their conviction, and as the learned Judges of the High Court, who admitted the appeal, were not impressed by the reason'given by the Sessions Judge for giving the lesser sentence, they issued notice to the appellants for the enhancement of the sentences against them.
11. ' This appeal came up for hearing in due course before a Division Bench of the Sind High Court. The learned Judges, who heard the appeal, were impressed by the ocular evidence, because the eye- witnesses were natural witnesses, and, because, according to them, "no enmity or hostility is shown to exist between these witnesses and the appellants. They have, therefore, no motive in falsely implicating the appellant". The learned Judges also observed that the evidence of the eye- witnesses was corroborated by the evidence of the recoveries, and, to our surprise, we find that the learned Judges were very impressed by the evidence of Lal Muhammad, who witnessed the recoveries of the blood-stained hatchets of the two appellants. Finally, although the learned Judges rejected the first appellant's plea that the injuries to him had been caused by the police, and although they accepted the prosecution case that the first appellant had been injured in a scuffle between him and the eye-witnesses, the learned Judges did not care to analyse the implications of the conclusion thus reached by them, and they therefore enhanced the sentence against both the appellants to death. Hence this appeal.
12. ' Mr. Mhammad Sadiq Warraich submitted that the prosecution evidence about the motive for the murder was not fit to be believed, because the alleged motive was . The dispute on the previous day between Kauro and Allah Warayo's son, whilst, according to Allah Warayo, the appellants and Soomar had attacked and chased him and had killed his son only because he happened to come in the way whilst they were chasing Allah Warayo. The submission' is correct, and the fact that the motive attributed by the prosecution for the crime is so flimsy will be relevant to the question whether the first appellant had made a premeditated attack on Ghulam or whether he had attacked him] in a sudden fight.
13. ' There are however other aspects of the case which escaped the attention of both the Courts below. Thus for example according to Allah Warayo "Rasool Bux was hauled up while the other accused......Ran away." Mehro, Gohram and Ghulam Kadir supported Allah Warayo's claim that they had overpowered the first appellant secured his hatchet from him, detained him in the village and produced him before the police. But as all the four eye-witnesses were empty-handed, is it possible that they would have attempted to overpower murderers who were armed with hatchets ?
14. No doubt unarmed persons can overpower a murderer, but it is impossible to conceive of unarmed persons overpowering armed assailants without the unarmed persons receiving some injuries in the course of their attempt to capture the armed assailants. But none of the witnesses had received even a scratch, and, on the contrary, it is the prosecution case that it was the armed murderer who was injured in the fight which led to his apprehension. As this part of the prosecution story is inherently improbable, Mr. Warraicli submitted that both sides must have been armed, and that the death of Ghulam had occurred in a sudden fight between the two parties.
15. ' If both sides were armed, as suggested by learned counsel, the claim of the eye-witnesses that they had overpowered the first appellant in a scuffle would become plausible and here the medical evidence become relevant, as the eye-witnesses had merely stated that they had caused injuries to the first appellant in a scuffle with him. Dr. Muhammad Ismail however explained in his evidence that the first appellant had five injuries which "appeared to have been caused by a hard substance like a "lathi . In view of this evidence, the only inference which can be drawn from the facts is that the eye-witnesses had attacked the first appellant with the lathis which they were carrying. But as the eye-witnesses had suppressed the tact that they were armed with lathis; the view of the learned Judges that the ocular evidence was reliable is based on a misreading of the evidence.
16. ' There is yet another circumstance crucial to the question of the veracity of the eye-witnesses which was ignored by both the Courts below. I would recall here what Allah Warayo said after Mehro and 'others had overpowered the first appellant Warayo said "Gullu, Bachu and Hyder surrounded me when Hyder, Gullu and Bachu attacked him 1 ran away straight to the Police Station." As Hyder, Gullu and Bachu are alleged to have attacked Allah Warayo as soon as the first appellant had been overpowered by Mehro and others, these eye-witnesses would also have seen this further attempt to attack Allah Warayo provided of course an attack was made. But Ghulam Kadir who was comparatively an honest witness has not made any reference to this alleged attack by Hyder, Gullu and Bachu on Allah Warayo, nor were Hyder, Gullu and Bachu challaned by the police. However Mehro said in his evidence "the complainant told me that Bachu, Hyder and Gullu had chased him ' " Gohram also said that Allah Warayo had told him that the two sons and nephew of Kauro have tried to attack him. As Mehro and Gohram were supposed to have been present at the time of this attack, the question of Allah Warayo's informing them about the attack did not arise, and both these witnesses had to concede in cross-examination that they had not made any reference to Gullu, Hyder and Bachu in the earlier statements. Therefore it is obvious that Allah Warayo had falsely tried to implicate Hyder, Gullu and Bachu, whilst Mehro and Gohram had made a halfhearted attempt to support Allah Warayo in his attempt to bring a false charge against the sons and hephew of Kauro. Therefore the fact that stared the High Court in the face, when the learned Judges heard the appeal, was that all the eye-witnesses had falsely implicated Kauro's brother-in-law Soomar, that Allah Warayo had falsely implicated the two other sons of Kauro and Katiro's nephew, namely, Hyder, Gullu and Bachu, and Mehro and Gohram had half- heartedly attempted to support this false charge against Hyder, Gullu Bachu. In the circumstances I am unable to understand the observation of the learned Judges that "no enmity or hostility is shown to exist between these witnesses and the appellants".And with respect the concurrent finding of the two Courts that all the eye-witnesses were witnesses of truth is based on a total misreading of the evidence. Therefore the ocular evidence cannot be accepted unless it is corroborated by independent evidence of reliable nature, and I will first examine whether the ocular evidence against the second appellant is corroborated by independent evidence.
17. The trial Court had relied, for the purpose of corroboration, on theevidence produced by the prosecution about the motive for the murder, but this evidence has no corroborative value, because it comes from the mouths of the very witnesses whose evidence requires corroboration.
18. However the prosecution also relied on the recovery of the hatchet produced at the instance of the second appellant because it was stained with human blood and as the High Court has been very highly impressed by the evidence of this recovery. 1 would explain here that the second appellant was arrested the day after the occurrence by Shamimur Rahman, Sub-Inspector of Dadu Police Station. This witness said that the appellant had produced his blood-stained clothes and a blood- stained hatchet and that these recoveries were witnessed by two mashirs Lal Muhammad and Mahmood. Now it is significant that the clothes of the appellant were not found to be stained with human blood by the Chemical Analyser, and this was a circumstance which was not noticed by the Courts below. Additionally, Lal Muhammad admitted, but only in cross-examination that both he and the other mashirs Mahmood were relations of Allah Warayo. Therefore I am surprised that the learned Judges of the High Court were so impressed by a recovery which was witnessed apart from the Investigation Officer, only by the relations of the complainant. The learned Additional Advocate-General submitted that the police might not have been able to obtain independent witnesses as mashirs. Now no doubt it might sometimes be difficult for the police to obtain independent witnesses as mashirs but if so, it is for the prosecution to explain how it could not obtain an independent witness as a mashir, and, in the instant case, neither' of the Investigation officers have explained why they were not able to find at least one independent person as a mashir. On the other hand a casual perusal D of the evidence shows that there would have been no difficulty in finding at least one independent person to witness the recovery. I say this because Lal Muhammad admitted, but once again only in cross-examination, that when he reached vardat with the other Investigation Officer, Ahmad Khan. "I found 50 ,persons at the vardat. Those were the people of the locality." Additionally as Lal Muhammad admitted that he lived in another village, to say the least, it was very strange that Ahmad Khan went out to his way to select as mashir a relation of the complainant who lived in a different village. But this means that the recoveries were in utter disregard of the provisions of section 103 of the Criminal Procedure Code. Unfortunately this was a circumstance which escaped the attention of the learned Judges.
19. ' Next as to the place where the blood-stained hatchet of the second appellant was found, both the Police Officer and Lal Muhammad said that it had been recovered from a hedge. Therefore the obvious question was whether this was the private hedge for the house of the appellant, or a public hedge to which the public had access and the learned counsel for the second appellant cross- examined both the witnesses on this aspect of the case. The Police Officer, who apparently suffered from a short memory. Could not remember whether the hedge was the common hedge of the village. However Lal Muhammad admitted in cross-examination, the entire-village has a common hedge all round." This means that the recovery was from a place to which all the residents of the village had access. Secondly, despite the attempts o the learned counsel to clarify the precise spot from which the hatchet was re covered, it was not clear whether it was recovered from that part of the hedge which surrounded the second appellant's house or from some other part of the hedge.
20. This was yet another circumstance which escaped the attention of the Courts below. Finally it would not be irrelevant to recall here that the clothes of the second appellant were not stained with human blood, and further the medical evidence is not inconsistent with the possibility that the deceased had been attacked by a single assailant. Accordingly, in all the circumstances discussed, the evidence of the recovery of the hatchet is of no corroborative value whatsoever. But as there is no other corroboration of the ocular evidence against the second appellant, it follows that the prosecution has failed to prove his guilt beyond reasonable doubt, therefore we have allowed this appellant's appeal and set aside his conviction.
21. I now turn to the first appellant. As I explained earlier, the prosecution evidence about the motive for the murder is of no corroborative value whatsoever, and for the same reasons the recovery of the hatchet used by the appellant is also of no corroborative value. However, both Ahmad Khan and Lal Muhammad said that the first appellant had been produced before them by Ghulam Kadir and Mehro and I observed earlier that Ghulam Kadir had more regard for the truth then the other eye-witnesses.. The first appellant has also not produced any evidence to rebut this evidence.
22. Thirdly Dr. Muhammad Ismail's evidence supports the claim of Ghulam Kadir and the other eye- witnesses that they had injured the first appellant in a scuffle with him, and, on the other hand, this appellant's explanation of the injuries to him was false and was rightly rejected by the Courts below. Therefore, the injuries to the first appellant, are sufficient to establish that this appellant, who was armed with a hatchet, had participated in a fight with the party of the complainant and had been overpowered, and to this extent the ocular evidence is clearly corroborated, by other evidence. And, I would now turn to Mr. Warraich's submission that the first appellant had hit and killed the deseased in the course of a sudden and unpremeditated fight.
23. ' I observed earlier that Ghulam Kadir was a comparatively honest witness, but he as well as Mehro and Gohram had come to the vardat only after the alarm raised by Allah Warayo. As this was long after the appellants, would have alleged to threaten him and chase him, the only evidence of how incident began is the evidence of Allah Warayo, but as this witness had deliberately and falsely implicated four members of Kauro's family in the G occurrence, no reliance can be placed on his evidence. This means that the origin of the occurrence is shrouded in mystery and therefore, the first appellant's conviction for murder cannot be sustained. Additionally, as the motive for crime is too flimsy to be believed, in all the circumstances discussed, the only reasonable inference from the facts, is, as submitted by Mr. Warraich, that there was a sudden altercation between the parties in the course of which the first appellant was hit, therefore, if I may say so, he returned the compliment and it is not irrelevant to refer here to a circumstance which had impressed the trial Court. This was that the first appellant had hit the deceased only with the back side of his hatchet.
24. It cannot, therefore,be said that this appellant acted in a brutal and callous manner. Accordingly, I would alter his conviction from section 302, P. P. C. To Part I of section 304, P. P. C. And sentence him to rigorous imprisonment for 7 years and a fine of Rs, 500 or in default two months' R. I. The fine if recovered will be paid to the heirs of the deceased.
25. G. SAFDAR SHAH, J.-I agree. KARAM ELAHEE CHAUHAN, J.-I agree. .