B. G. N. KAZI, J.---Appellants, Khamiso son of Yousuf Chhachhar and Khudadino son of Mohammad Chhachhar, alongwith nine others were charged with committing the murder of Abdullah Chhachhar on 6th April, 1976 in prosecution of common object by giving him hatchet blows and of causing injury to Allahdino Chhachhar. They were tried by the Sessions Judge, Dadu, who acquitted nine accused by giving them the benefit of doubt and convicted the two appellants for an offence under section 302/34, P. P. C. And sentenced them to death. The Sessions Judge, also convicted appellant Khamiso, for offence under section 324, P. P C. And sentenced him to R. I. For one year in case his death sentence is not confirmed. The Sessions Judge, Dadu, further directed under -section 544-A, Cr. P. C. That the two appellants to pay compensation of Rs 2.000 each to the heirs of deceased, Abdullah or in default suffer R. I. For 6 months again, in case their death sentence is not confirmed. He further directed accused Khamiso, to pay compensation of Rs. 2,000 to complainant Allahdino or in default of payment of compensation to suffer R. I. For one month more if his sentence is not confirmed. The 2 appellants have filed appeal against the aforesaid convictions and sentences. There is also a reference for confirmation of the sentence of death passed against them. Both the appeal and reference are being dealt with in this order.
2. The prosecution case briefly stated is as under. On 6th April, 1976 at about 1 p. m. Allahdino son of Agedino, lodged first information report at the Manjhand Police Station that Abdullah son of Muhammad Chhachhar had been murdered by Muhammad son of Allahdino Siddik son of Soonharo, Saleh son of Soonharo, Faizo son of Jamal, Muhammad son of Allahdino, Khuda Dino son of Mohammad, Soomar son of Yousif, Abdul Rahim son of Yousif, Allahdino son of Yousif, Khamiso son of Yousif and Ahmed son of Yousif. He bad reported that the 11 persons who were all armed with hatchets had attacked deceased Abdullah in the shop of Soomar son of Chhachhar in village Wada Chachhar at about 8 hours that very day. Complainant Allahdino had stated that Abdullah, deceased who was also son of his nephew and who bad been residing with him had purchased a plot of land from one Jamal son of Sindino on a consideration of Rs. 500. The plot which was near the house of the complainant had been purchased by deceased Abdullah, for constructing a cattle pen. However, about a month after the purchase of the plot Soomar son of Yousuf, had taken possession of the same and had started constructing shed for his cattle. Abdullah had informed Soomar that the plot in question bad been purchased by him from Jamal. He lad, therefore, suggested that either Soomar should leave the plot or at least get the amount paid by him to Jamal for the plot returned Soomar, however, did not agree. The complainant and Abdullah, therefore had complained to Nekmard, Haji Ibrahim, who had sent for Soomar and others and bad settled the dispute. Soomar and his party promised to pay the amount to Abdullah within a month.
It was the case of the complainant that Abdullah had gone to Soomar and others for the amount but the same was not given to him and he was threatened with dire consequences if he continued to press his demand. On the day of incident Allahdino had sent Abdullah to shop of Soomro which is near his residence, to purchase bidis. Shortly afterwards there was commotion and cries of "murder! "murder"! The complainant on hearing the cries ran towards the scene of offence where he saw the aforesaid 11 accused who all had hatchets in their hands. The 2 appellants were giving hatchet blows to Abdullah and the other accused were abusing and shouting "Hakals". On the cries and commotion Patio son of Pirdino and Bachoo son of Babu among other villagers had come and bad requested the accused not to kill Abdullah. Allahdino too had entreated the accused not to kill Abdullah. Appellant Khatniso son of Yousif, gave him a blow with the hatchet which struck him on his left elbow. Due to fear he had run away and had approached the Nekmard Haji Ibrahim who had come running back to the scene of offence with him. However, by the time they reached near the shop. The accused bad started going to their houses taking their hatchets with them. It was further stated by the complainant that Haji Ibrahim had also seen the accused and identified them.
3. Abdullah deceased was lying at the door of the shop of Soomar. He was dead and had hatchet injuries on his body. The complainant and Haji Ibrahim, were informed by Pario Bejooro, Bachoo Chachhar and shopkeeper Soomar that the 11 accused bad run away after causing death of Abdullah.
4. A. S. I. Ghulam Shah, who was incharge of Police Station, Manjhand, recorded the F. I. R. He then proceeded to the scene of offence alongwith complainant and in the presence of mashirs Arat and Mohammad, he prepared mashirnama. The scene of offence was in front of shop of Soomar in village Wada Chachhar. The dead body of Abdullah was lying there. There were hatchet injuries on the body and there was blood on the ground. The blood-stained earth was secured, packed and sealed. The A. S. I. Then held inquest over the dead body in presence of the same mashirs and prepared the report. He then sent the dead body through Police Constable, Abdullah, to Medical Officer, Kotri for post-mortem examination. Complainant, Allahdino who had injury was referred to the Medical Officer for examination, treatment and certificate. The investigating officer then recorded statement of P. Ws. Bachoo, Soomaro, Ibrahim and Idan. On 7th April, 1976 he arrested accused, Siddik, Khudadino, Khamiso, Umar and Ahmed, Saleh, Mohammad, Faizo, Soomaro, Abdul Karim and Allahdino, in presence of mashirs, Jumo and Din Mohammad.
5. Accused Siddiq, Khudadino, Khamiso and Umer each voluntarily produced blood-stained hatchets which were separately packed and sealed and sent to the Chemical Analyser who found the same stained with human blood. The houses of accused Ahmed, Allahdino, Soomar, Abdul Karim, Saleh, Mohammad and Faizo were searched and hatchets secured but no blood stains were found on the same. Such mashirnamas were prepared.
6. The A. S. I. Got recorded the statements of Pario, Bacho, Haji Ibrahim. Soomar and Idan by the Mukhtiarkar and F. C. M., Sehwan under section 164, Cr. P. C. He secured blood-stained shirt and shalwar from the possession of accused Siddik, in presence of mashirs at the time of his arrest.
7. All the 11 accused pleaded not guilty and denied the production of hatchets or any involvement in the alleged incident. All of them stated that the prosecution witnesses were deposing against them due to enmity. Accused appellant Khamiso, further stated that Khudu and Allahdino, complainant, were cousins and that daughter of Khudu is married to P. W. Soomro. P. W. Pario was a servant of Haji Ibrahim and mother of P. W. Bachoo is sister of P. W. Achar and were of Achar is the mother of deceased and sister of P. W. Jumo. He further raised the plea that he had been falsely involved in the case, due to enmity of P. W. Haji Ibrahim who has dispute with him over matrimonial matters. The accused appellant produced certified copy of judgment in Sessions Case No. 100/75 in which he had been tried on the charge under section 13-D. Arms Ordinance, but had been acquitted. The copy of the judgment shows that the accused appellant in that case had denied the allegation levelled against him by the prosecution and bad further submitted that he had been falsely involved in the case by the police at the instance of Haji Ibrahim.
8. Accused appellant Khudadino made a statement similar to that of accused Khamiso, who is his uncle.
9. The evidence on record against the appellants consists of ocular evidence of complainant Allahdino and P. Ws. Soomro, Pario and Bachoo supported by corroborative evidence of P. W. Idan and the evidence with regard to recovery of blood-stained hatchets which according to prosecu-- tion were produced by each appellant accused.
10. A perusal of the ocular evidence shows that there are three different versions about the number of persons involved who have been implicated.
11. Complainant Allahdino implicates only the two appellants as having caused injuries to the deceased. According to P. W. Soomro the two appellants as well as acquitted accused Siddik and Umar caused injuries to the deceased inside his shop. P. W. Pario implicates the appellants and acquitted accused Siddik and Umar and finally according to P. W. Bachoo all the eleven accused caused injuries to the deceased. It has been contended on behalf of the appellants that if the case against nine of the eleven accused persons was found to be false and even against 2 bf the four accused namely P. Ws. Soomro and Pario were acquitted, the conviction of accused appellants on the evidence of Allahdino alone is not justified for a proper appreciation of the aforesaid contention the sifting of the ocular evidence is necessary. The version of complainant Allahdino in the F. I. R.
Was that he had sent deceased Abdullah to purchase Bidis from the shop of P. W. Soomro. It was on hearing cries that he bad run towards the shop. It is, therefore, very clear that the incident started in the shop of Soomro who and the other alleged eye-witnesses have given the version about the attack on the deceased which took place inside the shop. According to the version of complainant Allahdino on running towards shop of Soomro he saw Mohammad son of Allahdino, Siddik,; Saleh, Soomar, Faizo, Khudadino, Abdul Karim, Allahdino, and Khamiso, all armed with hatchets. He further elaborated that appellant Khamiso and Khudadino, were giving hatchet blows to Abdullah and other were aiding and abetting by giving abuse and throwing out challenges and that Pario, Bachoo and other persons of the village who had gathered there, were requesting the accused not to kill Abdullah. It was further his case that he also requested the accused similarly but the accused Khamiso gave him a blow with the hatchet. He raised his hand to protect himself and received the blow on his elbow. The alleged injury to the complainant is important for proving his presence at the scene of offence but whereas he has finally stated in his deposition that accused Khamiso gave him a blow with back side of his hatchet on his left arm. The evidence of Dr. Abdul Latif, who examined him is not in consonance with his version inasmuch as his report shows that complainant Allahdino had one incised wound 1" x --" x --' on the posterior side I" below the left elbow joint of left forearm. The wound being incised wound could not have been caused by back side of the hatchet as stated by the complainant.
12. The learned counsel for the appellants has pointed out the discrepancy to show that the evidence of complainant Allahdino cannot be considered wholly reliable even in the matter of injury caused to him.
13. The learned Sessions Judge, has differentiated the case against the 2 appellants from that against all the 11 accused and also against accused Umar and Siddik on the ground that the complainant was in a position to witness the incident from the place which is near the shop as shown in the sketch. As already stated it is undoubtedly the case of the prosecution that deceased had gone to purchase `bidis' from the shop of P. W. Soomar and therefore, what the aforesaid shopkeeper stated and also what witnesses Pario and Bachoo stated, cannot be brushed aside. In the deposition the complainant has stated that he saw the deceased being given injuries 2/3 feet outside the gate of the shop of Soomro. With regard to the same incident the version of P. W.
Soomro is that on the day of the incident at about 8 a. m. He was sitting in his shop and one Jamadar Sanjjar was also sitting with him when Abdullah deceased came to purchase bidis. He further stated as under:- "After about two minutes Khudadino son of Mohammad Siddiq, Khamiso and Umer came in my shop. All the four were armed with hatchet each. All the four gave hatchet blows and dragged him out."
The witness gave reason for his not immediately going outside the shop by stating that accused Khamiso had told him that he should stay inside the shop else he would also be murdered.
Accused Khamiso, stood at the door of the shop. If we believe the aforesaid version of Soomro, after the deceased was dragged out of his shop, Khamiso appellant accused stood at the door of the shop and it was after about 10 or 15 minutes when he and the other accused went away that Soomro came out of the shop. This witness has definitely stated that he cannot say who caused injuries to the deceased outside his shop. This witness in his deposition in the committal proceedings had stated that at the time deceased Abdullah came, Khudadino son of Mohammad who had a hatchet in hand came in side followed by Siddik. He further stated as under:- "Khudadino gave hatchet blow to Abdullah. I caught hold of. Siddique. Thereafter Khamiso came and raised his hatchet against me and said as to why you have caught my companion. I left the man and fourth person, Umer also came inside and then all the four jointly inflicted hatchet blows upon the deceased Abdullah. Then they dragged him out and asked me in case you came outside would be killed. I was standing inside. Afterwards other accused also came. I was standing inside due to fear."
14. P. W. Pario states that he heard cries from the shop of Soomro. He describes the incident in the following words in his deposition.
"I went and saw Khudadino, Khamiso, Umer and Siddik, all were armed with hatchet each. They went inside the shop of Soomro. Allahdino. Iddan, Haji Ibrahim and others came. Abdullah was dragged out from the shop of Soomro after being given injuries by these four persons. The accused challenged that nobody should intervene. Accused Khamiso had given injury with backside of hatchet to Allahdino on his arm. Allahdino went running towards southern side. After the incident accused Allahdino, Soomar, Ahmed, Faizo, Saleh, Mohammad and Abdul Karim also came. All the seven accused who came later on had also a hatchet each in their hands and they also caused injuries to Abdullah who was lying on the ground. Then all the accused went away raising slogans."
P. W. Bachoo, describes the incident as under:--- "This incident took place about 2 years back at about 8 a. m. I came out from my house and was going to the shop of Soomro. I saw that accused Khamiso, Khudadino Umer and Siddik were coming running from my back side. All of them were armed with hatchets. They rushed inside the shop of Soomro. I then heard cries of Soomro of murder I murder ! I saw that accused Umer and Siddik dragged Abdullah out of the shop of Soomro. Then all the four accused gave hatchet blows outside the shop of Soomro. Then came there accused Soomar, Adloo, Ahmed, Allahdino, Mohammad Saleh, and Faizo. They also were armed with hatchet each. They all also caused hatchet injuries to Abdullah who was lying on the ground."
"I cannot say how many injuries each .Of the accused caused to Abdullah."
It is significant to note that both witnesses Pario and Bachoo have stated that they saw accused Khamiso giving injury with back side of hatchet to complainant Allahdino on his arm. However, in his deposition in the committal proceedings witness Pario had stated that complainant Allahdino had come running and that accused Khamiso had given sharp-sided hatchet blow on his arm.
15. From the discussion of the evidence of alleged eye-witnesses referred to above it is apparent that there were different versions about different accused causing injuries to the deceased.
Complainant Allahdino implicated all the 11 accused, and stated that he had seen accused Khudadino and Khamiso (the 2 appellants) giving hatchet blows to Abdullah while the rest of the accused were abusing and throwing out challenges. However, the complainant is stated to have seen the incident only outside the shop of Soomro. P. Ws. Soomro, Pario and Bachoo, give different versions, P. W. Pario has mainly implicated 4 accused namely, Khudadino, Khamiso, Umer and Siddik and has stated that these 4 persons after giving injuries to Abdullah, dragged him out of the shop. About the rest of 7 accused P. Ws. Pario and Bachoo have stated that they came after accused Umer, Siddik, Khudadino and Khamiso, had given hatchet blows to Abdullah and had dragged him out and the other 7 accused according to these 2 witnesses gave hatchet injuries to Abdullah after he was dragged out and was lying on the ground.
16. The learned Sessions Judge, Dadu, while discussing the ocular evidence relied on the testimony of complainant Allahdino and specially that part of it in which Allahdino, had stated that accused Khudadino and Khamiso gave hatchet blows to Abdullah. It may here be stated that complainant Allahdino, implicated all the 11 accused who according to him were all armed with hatchets and were abusing and challenging whereas accused Khudadino and Khamiso were actually giving hatchet blows. The learned Sessions Judge, however, choose to rely only on the evidence with regard to the causing of injuries with hatchet to the deceased by accused Khudadino and Khamiso but obviously did not accept the entire evidence of complainant Allahdino inasmuch as he acquitted the rest of the 9 accused. The learned Sessions Judge, also did not accept the testimony of P. W. Soomro who had implicated accused Khudadino, Siddik, Khamiso and Umar and according to whom these 4 accused had given blows to Abdullah and dragged him out of the shop. Although P. Ws. Pario and Bachoo had also supported the evidence of Soomro to the extent that they had seen Khudadino, Siddik, Khamiso and Umar, armed with hatchets going inside the shop of Soomro and had caused injuries with hatchets to the deceased and dragged him out of the shop. The learned Sessions Judge, did not believe the evidence of Pario and Bachoo as there were some discrepancies in their evidence. In the cross-examination Bachoo having stated that accused Khudadino gave hatchet blows to Abdullah inside the shop and that none of the other accused inside the 'shop gave blow to Abdullah, and again P. Ws. Bachoo in his cross-examination had stated that he did not see accused giving blow to Abdullah inside the shop. It was, therefore, the opinion of the learned Sessions Judge, that evidence of P. W. Soomro to the effect that he had seen accused, Khudadino, Siddik, Khamiso and Umer, giving blows to Abdullah inside the shop was belied by the reply of P. Ws. Pario and Bachoo given in the cross-examination. The learned Sessions Judge, therefore, depended on the evidence of complainant Allahdino which according to him was corroborated by circumstantial evidence with regard to the recovery. It would, however, appear that there was not proper appreciation of the evidence of complainant Allahdino, who admittedly was a near relative of the deceased and, therefore, an interest--ed witness. As stated earlier the evidence of complainant Allahdino with regard to the nature of injury received by him was not in consonance with the report of Dr. Abdul Latif, who had examined him inasmuch as although complainant Allahdino had stated that accused Khamiso, gave him a blow with back side of his hatchet. Doctor's report shows that Allahdino had incised wound. That the only wound suffered by Allahdino was an incised injury, which could not possibly have resulted from a blow with back side of the hatchet as stated by him.
17. It is also obvious that although the learned Sessions Judge, wholly accepted the testimony of Allahdino to be correct, at least in so far as that testimony concerns the other 9 accused it was not considered worthy of credit. The main stress was laid by the learned Sessions Judge, on the fact that in the sketch of the wardat prepared by Tapedar, the point where Allahdino was stated to have been standing, was only one foot away from the point where the dead body of Abdullah was lying. He was, therefore, of the opinion that Allahdino was in a position to see the giving of blows to the deceased much more than any other witness. The place where the dead body was found lying, however, does not necessarily mean that all the injuries sufficient to cause his death were received at that spot nor could it be said that complainant had been all the time one foot away from the deceased. It is the prosecution case that he was sitting at home when he heard noise of commotion and cries on hearing which he had gone outside. The commotion and cries could only have been due to the reason of the causing of injuries to the deceased and as already stated there was evidence of, at least, 3 alleged eye--witnesses, namely, shopkeeper Soomro from whom the deceased had gone to purchase bidis and witnesses, Pario and Bachoo to the effect that not only the 2 appellants but accused Siddik and Umer also gave injuries to Abdullah who was latter dragged out. As already stated it cannot be said that all the 10 injuries found on the body of the deceased were caused by the 2 appellants one foot away from the complainant. With regard to this point it is of interest to consider the evidence of mashie, Arab who was the mashir of wardat which according to him was pointed out to the police by complainant Allahdino. Arab has stated that there were blood stains on the walls of the shop. The mashirnama supports his testimony as there is mention in it that there were blood marks on the ground and also on the walls of the shop towards east side of the corner at a distance of about 8/9 feet inside the shop. It is further stated that by the side of the wall there was lying empty tin of chillies with blood stains on it and there were also blood marks on empty bags of rice. There were marks of struggling inside the shop. The mashirnama further mentions that in front of the shop there is door of the house of witness, Patio son of Pirdino at a distance of 20 feet and towards the north there is common street going to south and at some distance at about 12 paces there is house of Muhammad Kumbhar towards the south at about 12 paces there is door of the house of deceased Abdullah and complainant. The blood- stained bags and tin of chillies had also been secured and sealed by the Police.
18. The complainant in his F. I. R. Had himself stated that on commotion Pario and Bachoo among other had gathered there and were requesting the accused not to kill the deceased. The sketch of the scene of offence shows that the house of Patio and specially the place where he was standing was only 22 feet away from the point near which the dead body was lying. The aforesaid 2 witnesses, however, rave given different version with regard to the injuries caused by 4 of the accused including the 2 appellants inside the, shop and the deceased being dragged out and given further blows.
19. It is well-settled principle of appreciation of evidence that evidence given by interested witness should be carefully scrutinized and should be corroborated in material particulars by evidence of independent witnesses whether direct or circumstantial. In the instant case as stated by the complainant Allahdino himself in his deposition as well as in the F. I. R. Idan had come soon after the incident at the wardat and had been left to take care of the dead body while the complainant had gone to lodge report at the police station. The aforesaid witness, however, has not corroborated the evidence of the complainant with regard to the 2 accused appellants giving hatchet glows to the deceased. The witness stated in his deposition that he had made enquiries from Allahdino who had told him that sons of Soonharo and Yousif had killed his grand--son and that they were in all 11 persons. He further stated that the com--plainant told him that they had given hatchet blows to Abdullah. It is true that all the 11 accused Siddik and Saleh are sons of Soonharo and accused Soomar, Ahmed, Allahdino, Abdul Karim and Khamiso are sons of Yousif.
Umer and Mohammad, however, are shown as sons of Allahdino and Faizo is son of Jamal whereas Khudadino is son of Mohammad. The aforesaid testimony of P. W. Idan, therefore, cannot be considered to be corroborative of the testimony of complainant Allahdino in respect of implication of the 2 accused appellants. In fact the learned counsel for the appellants has pointed out that the evidence of witness Idan was not, at all, been discussed in the Judgment as it would otherwise have detracted from the weight to be given to the evidence of complainant, Allahdino. The only other piece of evidence which has been considered by the learned Sessions Judge is with regard to the recoveries of blood-stained hatchets from the 2 appellants. 1t may be remarked here that the learned Sessions Judge was of the opinion that since mashie Jumo had admitted that appellants and mashirs were standing outside when all the accused had taken out hatchets from their houses and produced before Police and further since the articles were sent to chemical analyser after a period of more than 3 months the evidentiary value of the report of the chemical analyser had diminished. However, in spite of aforesaid finding the circumstantial evidence of recoveries of blood-stained hatchets was taken into consideration only against 2 appellants and not against 9 acquitted accused. The same consideration, however, apply inasmuch as the recovery of blood-stained hatchets was not as contemplated by the provisions of Evidence Act. It may further be stated that mashir Jumo had admitted in cross-examina--tion that he did not know the meaning of word, "sealed" and he had also admitted that the allegation about the individual accused taking the police to their houses and producing the hatchets was not correct and that all the accused had produced hatchets before the Police at once at the same time. With regard to the delay in sending the hatchet for test to the chemical analyser the learned Sessions Judge, had held that the fact diminished the evidentiary value of the report. Mr. Murtaza Hussain, the learned counsel appearing on behalf of the State, has pointed out that since no questions were put to the Investigating Officer which could have enabled him to explain the delay in sending the articles late to the Chemical Analyser and that delay simpliciter in despatching the incriminating material to the chemical analyser was not destructive of evidentiary value of such material. He has relied upon the decision of the Supreme Court in Anwarul Mason v. The State (1980 SCMR 649).
The question of the evidentiary value of the report of the Chemical Analyser is not much importance in the instant case, however, since as already stated the very recovery of the blood- stained hatchets cannot be considered to have been properly proved by the prosecution.
20. The question which remains to be considered is whether the uncorroborated and unsupported evidence of complainant Allahdino, an interested witness, which as already pointed out has in some particulars been contradicted by evidence of witnesses Pario and Bachoo named by him can be considered to be sufficient for sustaining conviction of the 2 appellants who have been sentenced to death: As already pointed out there were 3 different versions with regard to the incident which resulted in the murder of deceased Abdullah and obviously the learned Sessions Judge considered the version given by complainant Allahdino to be worthy of credit as further corroborated by the evidence with regard to the recovery of blood-stained hatchets by the 2 appellants. However, for the reasons already given since the evidence with regard to the recovery is not, at all, reliable and further the evidence of P. W. Idan is not corroborative of the version of the complainant, he having totally denied that he was given any name of the accused, in our consideration there is a serious doubt about the testimony of complainant Allahdino `3 which as already stated was only partially accepted by-the learned Sessions Judge as against the 2 appellants and not accepted as against the 9 acquitted co-accused.
21. Under the circumstances the Case against the appellants .Is not free from doubt, benefit of which is given to the accused. They are acquitted and, should be set at liberty forthwith if not required in some other case one appeal is accordingly allowed and in view of the decision no further orders on the reference with regard to confirmation of the sentences of death is necessary.