1. Three appellants named above and their two co-accused who have been acquitted, were tried for offences under sections 302, 324, 323/149 and 148, P. P.C. By learned Second Additional Sessions Judge, Larkana, who has vide his judgment dated 18th April 1979 convicted the appellants for offences under sections 302, 324 and 323/34, P.P.C. And sentenced them to life imprisonment and a fine of Rs. 1,000 each in default R. I. For six months on first count and sentenced appellants Arbab and Hidayatullah to 'R. I. For two months each on second and third counts. Co-accused namely Ayoob son of Rasul Bux and Abdul Ghani have been acquitted. By short order on 26th January 1981, I had allowed the appeal for reasons to be recorded later, which follow now.
2. Shortly stated prosecution story is that about two years before the incident in this case one Abdul Rehman's, a relative as appellant Hidayatullah was murdered and in that case Ali Akbar and Hussain Bux brothers of Wazir deceased in this case had been taken in custody and were in jail at the time when incident in this case took place. On 20th August 1976 at about 3-15 p.m. Deceased Wazir and his relatives P. Ws. Ali Asghar, Mst. Wallan and Nisar Ahmed were sleeping on the cots on the roof of the house of complainant Ali Asghar situate in deh Banguldero, taluka Ratodero. On the cries of deceased Wazir, other witnesses mentioned above were up and saw appellants Ali Hassan, Arbab and Hidayatullah inflicting hatchet injuries to Wazir, while acquitted co---accused Ayub and Abdul Ghani armed with guns stood guard and threatened witnesses not to come near. Mst.
3. Wallan, mother of Wazir, went and fell over him to protect him but she was given hatchet blows by appellants Hidayatullah and Arbab. After causing injuries assailants declared aloud that they had taken revenge of murder of Abdul Rehman's and went away firing in the air. Incident was seen by P.
4. W. Khamiso, who was sleeping on the roof of his house, which was adjacent to the house of complainant. Immediately after the departure of the assailants, witnesses Mahmood and Mumtaz from neighbourhood reached the scene of offence, who were apprised about the details of the incident. Witnesses went near and found Wazir lying dead with numerous hatchet injuries on different parts of the body. Leaving other witnesses near the dead body, complainant Ali Asghar took his injured mother Mst. Wallan to the police station Ratodero, where he filed F. I. R. At 6-00 a.m.
5. The distance between police station and scene of offence was 5 miles. S. H. O. Mohammad Ismail after recording F. I. R. Prepared mashirnama of injuries of Mst. Wallan and sent her to the hospital.
6. He came and inspected scene of offence, which was pointed out by the complainant. He secured blood-stained earth and other articles of bedding. He prepared mashirnama of vardat and inquest report of the dead body, which was then sent to the hospital for post-mortem examination. He also secured two empty shells from the vardat and blood stained shirt of P. W. Nisar Ahmed aged about 8 years, who was stated to have slept on the same cot with deceased. He had sealed all the incriminating articles recovered as stated above. S. H. O. Recorded statements of the witnesses. He arrested Ayub, Abdul Ghani, Ali Hassan and Arbab from their houses and Ayub produced his licensed S. B. Gun, which was made into a sealed parcel. Appellant Ali Hassan produced blood- stained hatchet from his `Kotha' which was sealed. Appellant Arbab also produced blood-stained hatchet from his house. All these blood-stained hatchets were put into sealed parcels. S. H. O. Got recorded statements of witnesses under section 164, Cr. P. C. And after completing investigation presented challan in the Court.
7. Prosecution before the trial Court has examined in all 11 witnesses in support of its case, 4 witnesses, namely Ali Asghar complainant, Khamiso, Mst. Wallan and Nisar Ahmed have been examined as eye-witnesses. Mashir Haji Atta Mohammad produced all mashirnamas from Exits. 12 to 24 but he was declared hostile and cross-examined as he did not support the prosecution case.
8. Other co-mashir was not examined. P. W. Dr. Noordin produced post-mortem report and deposed that deceased had sustained ten incised wounds on different parts of body and death was due to shock and haemorrhage consequent upon the injuries. He had also examined Mst. Wallan and found two injuries, one incised on left shoulder and the other contusion on the left wrist, which were both simple in nature. Other witnesses examined by prosecution were formal in nature. Prosecu-- tion produced report of the Chemical Examiner, which is to the effect that earth, three hatchets and yellow shirt of P. W. Nisar Ahmed were found to be stained with human blood.
9. Defence of the appellants in their 342, Cr. P. C. Statements recorded before the trial Court is denial simpliciter of all allegations levelled by the prosecution. They have further stated that the witnesses, who have deposed against them were interested and hostile. No witness is examined in defence.
10. Evidence produced before the trial Court by prosecution consists of ocular testimony, evidence of motive and circumstantial evidence of recovery of blood-stained hatchets from the appellants.
11. The other two co-accused, namely Ayub and Abdul Ghani, who were alleged to be armed with guns and fired in air have been acquitted by the trial Court with observation that they had not participated in the commission of crime, hence were given benefit of doubt. This also reflects upon the credibility of the eye-witnesses. Prosecution has examined four eye-witnesses and they are inter-related and related to the deceased. Complainant Ali Asghar and Mst. Wallan are brother and mother of deceased Wazir respectively. P. W. Nisar Ahmed child witness is son of sister of deceased, P. W. Khamiso, who claims to have seen the incident from the roof of the adjoining house does not appear to be related to the complainant but he has admitted that his brother Amin was one of the accused in the murder of Abdul Rehman's cousin of appellant Hidayatullah.
12. Similarly it is also admitted that two brothers of deceased Wazir namely Hussain Bux and Ali Akbar were in jail as accused for murder of Abdul Rehman's at the time of incident in this case. Not only this but there is still further background of enmity. Before murder of Abdul Rehman's there was murder of Hamzo. That Hamzo was brother of Daryakban, who is husband of sister of Atta Mohammad mashir in this case. In the murder case of Hamzo, deceased Abdul Rehman's and others were challaned as accused and in that Atta Mohammad, Shahnawaz and Ali Akbar appeared as prosecution witnesses. In this background ocular testimony of witnesses is to be analysed with great care and caution and would not be accepted without independent corroboration.
13. No doubt these four eye-witnesses can be said to be natural witnesses as complainant and Mst.
14. Wallan and Nisar Ahmed are inmates of the house where incident took place and Khamiso lived in the adjoining house and could see the incident from the roof of his house but the question arises whether they have really seen the incident, identified the assailants and have given correct version of the incident free from exaggeration. Incident is alleged to have taken place at 3,15 a.m. On the roof of the house of complainant. Mst. Wallan has received injuries and shirt of Nisar Ahmed is stated to have been stained with blood in the assault as be was sleeping on the same cot with deceased. These circumstances confirm presence of both these witnesses at the spot. Prosecution story is that appellants Hidayatullah, Arbab and Ali Hasan armed with hatchets gave injuries to Wazir, while acquitted accused Ghani and Ayub were armed with guns and stood guard and issued threats to witnesses not to come near. Mst. Wallan being mother fell over her son Wazir to protect him but she was given injuries by Hidayatullah and Arbab and she became injured.
15. Assailants went away firing in the air and declaring that they had taken revenge of murder of Abdul Rehman's. Now incident took place at 3,15 a.m, when all these witnesses were sleeping including deceased. Evidence is not clear who were up on whose cries. Complainant Ali Asghar has deposed that he were up on his own and saw the whole incident from start to the end. P. W. Khamiso has said in the Court that he heard cries, were up and saw the whole incident. Mst. Wallan has testified that she were up on the cries of Nisar Ahmed and saw the whole incident. P. W. Nisar Ahmed has said in the Court that his maternal uncle Wazir received hatchet injuries from which shirt of this witness became stained with blood, hence he were up and due to fear got down from the cot and stood at some distance. He has not said in his evidence that he raised cries but still he has narrated full facts of the incident. Evidence on this point is neither clear nor free from doubt.
16. Now about source of light in which eye-witnesses claimed to have identified the assailants complainant deposed that there was electric light coming from electric pole in the street. In his cross before the trial Court he stated that there is no electric bulb in the street on the eastern side of his house. There was bulb in the wall of the house of Master Mohammad the light of which came on the roof. On this point P. W. Khamiso stated before the trial Court that there was no electricity in the street. House of Master Mohammad was on the other side of the street at a distance of about 100 feet. There was parapet wall on the roof of the house of Master Mohammad and the bulb was inside the boundary wall on the roof of the house of Master Mohammad. This witness has further stat ed that bulb inside the boundary wall of Master Mohammad did not give much light and was of low power. This witness further deposed before the trial Court that he could not identify the witnesses who came to the spot after the incident because there was darkness. Now if that is true, how could this witness identify the assailants or for that matter see the incident. On this point Mst.
17. Wallan deposed before the trial Court that there was a bulb of 100 volts burning at the vardat and it was also moon--lit night. Admittedly there is no electricity in the house of this witness and being a rustic old lady how could she know the number of volts of the bulb is not understandable. In her cross before the trial Court she further clarified by saying that if one stood on the roof, bulb of 100 volts was visible, which was fitted on the door of Master Mohammad. P. W. Nisar Ahmed has stated before the trial Court that there was bulb light but he has not given any further details. Now as against this mashirnama of vardat Exh. 13 on the record contains long details of the place of incident and the places from where the witnesses saw the incident but there is no mention in it about the electric bulb in the light whereof the incident is alleged to have been seen. S. H. O.
18. Mohammad Ismail, who investigated the case also has said nothing in his statement before the trial Court about this bulb. Tapedar Shafi Mohammad, who prepared sketch of vardat, which was pointed out by P. W. Khamiso admitted in his deposition before the trial Court that no one showed him the place where the bulb was alleged to be burning at the time of incident. This Tapedar was directed by the trial Court to visit the site and note the place where the bulb was alleged to be burning at the time of incident: Tapedar revisited the scene and was shown house of Mohammad Khan Bhutto and found that electric bulb was not fixed outside but inside the house and that point "G" was 53 feet away from vardat towards eastern side and there was street in between. Tapedar has categorically stated before the trial Court that light from bulb at point `G" could not be seen from outside as the bulb throws light only inside the house. He has further stated that he did not see any other bulb at the vardat. In these circumstances claim of the eye-witnesses to have seen the incident and identified assailants in the light of bulb is highly doubtful.
19. Another point worth noticing is that complainant Ali Asghar and P. W. Khamiso have said before the trial Court that Mst. Wallan foil down over her son Wazir to protect him from hatchet blows. Mss.
20. Wallan in her own deposition has also said so before the trial Court. Now injuries were given to Wazir while he was sleeping on the cot and assailants were standing over the cot and if Mst. Wallan fell over Wazir to protect him and in that process received injuries, then those injuries are expected to be on her back but doctor has found one incised wound on her left shoulder and one contusion on her left wrist.
21. Complainant has deposed before the trial Court that after incident on commotion, came to the spot Haji Atta Muhammad, Haji Mumtaz and Muhammad who were apprised about the incident including names of assailants. In this context P. W. Khamiso has stated before the trial Court that he could not identify the persons who came to the spot after the incident because of darkness. He did not talk to them neither did he talk to the complainant. Mst. Wallan has deposed before the trial Court that after the incident Mumtaz and Mahmood came to the spot and these persons also saw the assailants running away. In her cross-examination she has stated that 6/7 persons came to the spot after the incident., and saw the assailants running away but she did not remember the names of those witnesses who came to the spot. P. W. Nisar Ahmad has deposed before the trial Court that after the incident Mahmood, Mumtaz Bhutto and others came to the spot and were apprised about the incident. Prosecution has not examined any one of those witnesses to corroborate eye account.
22. Now there is no independent corroboration available in this case. Medical evidence may show that injuries to the deceased were caused by hatchets and may also show that number of injuries was commensurate with number of assailants as three but medical evidence does not corrobo--rate qua accused and lends no support so far identity of assailants is concerned. So far recovery of blood-stained hatchets from appellants is concerned mashir Haji Atta Muhammad produced by prosecution did not support the case before the trial Court and was declared hostile Co---mashir Haji Muhammad Bux has not been examined and was given up as having been won over. I don't feel inclined to rely upon the testimony, of the S. H. O. On recovery of crime weapons for the reason that provisions of section 103, Cr. P. C. Were not complied with and independent witnesses were not taken up or joined in the investigation as mashirs. It is admitted by mashir Atta Muhammad that he was accused in the murder of Abdul Rehman's cousin of appellant Hidayatullah. Motive or recorded enmity is double-edged weapon and cuts both ways.
23. For the facts and reasons stated above I hold that prosecution has failed to produce satisfactory and conclusive evidence to connect appellants with commission of crime. I give benefit of doubt to them and acquit them by setting aside their conviction and sentence. In the result appeal is allowed and the appellants may be set at liberty if not wanted in any other case.