B. G. N. KAZI, J.---Guloo alias Gul Hassan son of Bukhsho Mochi, who was tried for murder of Dattar Dino by the Second Additional Sessions Judge Larkana, and convicted under section 302, P.P.C. To imprisonment for life and fine of Rs. 2,000 and in default of payment of fine to suffer further R.I, for six months has filed this appeal against the conviction and sentence, from Jail.
2, It may be stated at the very outset that the learned Additional Sessions judge has not given adequate reasons for awarding the lesser penalty inasmuch as it is merely stated that he is awarding lesser penalty looking to the circumstances of the case and age of the accused. The age of the accused is stated by him in the statement before the Court to be 30 years and, therefore, it is not easily understandable why that age was considered as a factor for grant of lesser penalty.
However, at the time of admitting the appeal no notice of enhancement of sentence was given and even otherwise since it is found to be a case of no reliable evidence with regard to the guilt of the accused no question for enhancement of sentence is involved.
3. The prosecution story briefly stated is that the appellant along with his brother Dhani Buksh, the absconding accused, at sunrise time on 9th August 1976, on the land of Khuda Dino Chandio in Deh Fatoohal Taluka Kamber, with common intention committed murder of Dattar Dino by causing injuries to him with hatchets. The deceased who was hari had gone to plough the land and had been followed to the scene of offence by his sister Mst. Imam Khatoon who on reaching the place saw the appellant and absconding accused Dhani Bux giving hatchet blows to the deceased. She raised cries and tried to interfere but the assailants pushed her aside and after causing injuries to the deceased ran away carrying their hatchets. It is further the case of the prosecution that P. Ws.
Alam and Sheral had witnessed the incident and had seen the culprits run away carrying the hatchets. Mst. Imam Khatoon went to Drigh Police Station and lodged F. I. R. S. H.O. Ghulam Kadir recorded the F.I.R. At 11.15 a. m, and accompanied the complainant to the scene of offence. The dead body of deceased was lying there. He prepared mashirnama of the scene of offence in presence of mashirs Ghulam Nabi and Shahabuddin. He also prepared inquest report, examined P.
Ws. Mohammad Alain, Sheral and Ghulam Nabi and searched for the accused when he arrested on 13April, 1976. He secured the blood-stained shirt of the appellant in presence of mashirs Ghulam Nabi and Lal Bux Mochis. It is further the case of the prosecution that the appellant led the Police party to his house and produced blood-stained hatchet from the bushes at the back of his house. The shirt and hatchet were forwarded to the Chemical Analyser who in his report stated that the articles were stained with human blood.
4. Thus the evidence against the appellant was ocular and circum--stantial. Mst. Imam Khatoon who was the main eye-witness and complainant also gave evidence about the motive.
5. The appellant who was brought before this Court was not repre--sented at the trial by any Advocate engaged by him but he was provided one by the State. He has stressed his plea that his sister Saitan was declared Kari with one Suleman who is cousin of Ghulam Nabi and nephew of father-in-law of Ghulam Nabi and, therefore, he has been falsely implicated in the instant case.
6. There are inherent weaknesses in the prosecution case due to which conviction cannot be sustained.
7. Mst. Imam Khatoon who is complainant and also alleged eye--witness has given evidence which does not inspire confidence and cannot be considered wholly reliable. Her version as given in the F.
I. R. Is different from her version in her deposition in the Court of Session in respect of alleged motive of the appellant and absconding accused Dhani Bux. Her version in the F. I. R. Is as under `About 20-25 years ago, my brother Dattar Dino son of Miandad Mochi was married to Mst.
Dhayani. About a year back Dhani Bux' son of Bakhsh Mochi who is brother-in-law of my brother came and stayed with my brother. My brother said to him, "you may stay here and assist me in my work, and then I will give you the hand of my daughter in marriage.
Since 2 or 3 days Dhani Bux was asking my brother Dattar Dino to get him married. There upon my brother Dattar Dino told him to wait for the time being as his daughter was still minor and as such he would not get her married to him. On this they exchanged harsh words."
8. In her deposition Mst. Imam Khatoon states as under:- "The accused had killed the deceased on the motive that they wanted his were to leave him but she was not leaving deceased Dattar Dino and therefore both the accused had intentionally came at the vardart armed with hatchets and killed my brother."
9. When the contradiction was pointed out to her in the cross-examination she stated that while making the F. I. R. She had stated that accused wanted their sister to leave the deceased but the police had not incorporated that portion in the F. I. R.
10. The witness further alleged that she had blood on her clothes as she had tried to interfere, when her brother received injuries and had shown the same to the police but the police did not secure the blood--stained clothes. The importance of such circumstantial evidence could not have escaped the S. H. O. As it would have supported the statement of the witness that she was present when injuries were inflicted on her brother but the S. H. O. In his deposition did not make such mention nor were the clothes secured. On the contrary Ghulam Kadir S. H. O. Stated that he recorded F. I. R. Of Imam Khatoon on her dictation and read it out to her and she accepted it to be true and put her thumb impression on it. This circumstance in itself shows that her evidence is not wholly reliable and, therefore, requires corroboration in material particulars by reliable testimony of direct and circumstantial evidence. Of the other two alleged eye-witnesses of the incident, Sher Mohammad was examined and Mohammad Alam was given up on the plea that his evidence was on the same point as that of Sher Mohammad. The giving up of witness Mohammad Alam raisesth the presumption that he may not have supported the prosecution if he had been examined. It is also not easily understood why the prosecution gave up the best evidence of a witness who, according to the sketch of the scene of offence prepared with the assistance of Sher Mohammad, one of the alleged eye-witnesses, was working in his field at a place from where he could actually see the incident unlike the place where Sher Mohammad is said to have been standing from which the incident could not have been witnessed due to the raised watercourse in-between. The place where Mohammad Alam was said to have been standing has been shown to be 350 ft. Away whereas the place where Sher Mohammad was standing is about 680 ft. From which even by showing of the prosecution the scene of offence could not be seen. It is the duty of the prosecution to have the best possible available evidence brought on record, specially in case involving such serious crime as murder.
1, It is the case of the prosecution that after causing injuries to the deceased the culprits ran away, P. W. Sher Mohammad states that Mst. Imam Khatoon on reaching the watercourse raised cries on which he went running and saw culprits running away after causing injuries to the deceased. They were about 100 paces from him.
12. The witness even according to his own version could not have witnessed the actual incident of causing injuries with hatchet. He has stated that "Mst. Imam Khatoon informed them that her brother Dattar Dino had been murdered by Gullo and Dhani, Bux." Under the circum--stances the evidence of Mohammad Alam who according to the sketch of scene of offence could have seen the incident had added importance and giving up of the witness justifies the drawing of adverse inference. Sher Mohammad in his cross-examination admitted that by the time they reached the scene of offence the culprits had gone away. There is also no explanation as to show the complainant came to be staying with her brother and why she followed him to the scene of offence. The version given by her in the F. I. R. That absconding accused Dhani Bux had taken pair of bullocks for ploughing without taking the "Ghoba" and, therefore, she bad followed taking the same, does not find any mention in her deposition. There is no evidence as to what happened to the plough and the pair of bullocks.
13. Although Mst. Imam Khatoon is alleged to have actually seen the incident, there is nothing in her evidence giving details as to which of the two culprits caused which injury. There were no details about the actual assault. The witness declined the suggestion that she did not witness the incident and when she reached the scene of offence she found her brother lying dead.
14. In view of the fact that the ocular evidence is not wholly reliable, it is more important that it should be corroborated by the circumstantial evidence connecting the appellant with the crime.
The prosecution has led the evidence with regard to recovery of the blood-stained hatchet and the blood-stained shirt of the accused.
15. The prosecution version does not inspire confidence as the appellant was arrested on 13April, 1974 i.e. Four days after the commission of the offence and it is hard to believe that a person committing murder would not change or destroy the blood-stained shirt which could serve as a badge of the crime or at least wash clean the weapon of offence if not throw it in a convenient stream. The evidence of recoveries, however, has lost value on the very ground that the recovered articles alleged to have been secured on 13th April, 1976 were sent to the Chemical Analyser and were received by him on 6th July, 1976. There is no explanation or justification for the delay and the report of the Chemical Examiner was made on 12th February, 1977.
16. In Mohammed Saleem v. The State (1968 P Cr. L J 538) reported m where the crime weapon recovered at instance of accused was sent to the Chemical Analyser for report after more than a fortnight, it was held that no reliance could be placed on such recovery. Similarly in Gulzar and others v. The State (1976 P Cr. L J 419) where blood-stained crime weapons were sent to theth Chemical Examiner one month after their recoveries the Lahore High Court held that the delay rendered recoveries valueless.
17. In the circumstances, stated we find that the evidence against the appellant is not sufficient to sustain conviction and is not free from doubt. By a short order dated 23rd June, 1980 we had allowed this appeal, set aside the appellant's conviction as well as sentence under section 302/34, P. P. C. And acquitted him of the charge, He was further directed to be released immediale1y if there was no other case against him. Hereinabove are the reasons for allowing the present appeal.