GHAUS ALI SHAH, J.-----This appeal under section 410, Cr. P. C., is directed against the judgment, dated 27th June, 1977 of the learned Additional Sessions Judge, Larkana, whereby, he convicted the appellants under section 302, P. P. C. And sentenced each one of them to imprisonment for life and also to pay a fine of Rs. 1,000 each and in default of payment of fine to suffer further R.I. For one year. It was also ordered that the fine if paid be given to the heirs of the deceased.
2. The facts of the prosecution case are that the complainant Nek Mohammad son of Mohammad Mithal, by caste Lukk, resident of Jiand Lukk, Taluka Miro Khan of District Larkana, lodged his F. I. R.
On 27th October, 1974 at 9 p.m. At Police Station, Miro Khan which reads as under:-- "I have got four sons. We all live together at the same house. Mohammad Mithal is my eldest son.
This year we have taken lease of 29 "jareebs" of land in Deh Jiand, from Piral Jamali. It is cultivated by Muhammad Suleman Langah. Today in the morning, Muhammad Suleman came and informed us that the "Dera" (produce) was ready and that we should go and effect "Batai" (division of grain) thereof. We told him that we would go there to effect Batai in the evening. At `Bipahri' tine, I and my son Muhammad Mithal took scale and baskets with us and went to the "Dera", at the inspection- path of Sujawal distributory. Mohammad Suleman cultivator was not present there. Then, we kept the scale and weights at the "dera" and went to look after our paddy crop nearby. After doing this, we returned to the "dera" at tipahri time. All of a sudden, there emerged five (5) persons from the distributory viz. (1) Lal, (2) Uris, both sons of Nibal, (3) Godo, (4) Kaloo both sons of Lal and (5) Dilloo son of Rasul Bux all by caste Sial residents of Nihal Sial, armed with hatchets. They challenged, saying, "Be careful. You cannot so escape." Then, at first, Godo son of Lal dealt a hatchet blow to Muhammad Mithal on his neck and he fell down. The remaining four accused gave him sharp- sided hatchet-blows on his back and other parts of body, after being fallen. Out of fear, we raised cries, whereupon there came Lutif Ali, son of Ghulam Nabi. Lukk and Roshan Ali son of Illahi Bux Lukk, raising `hakals'. They also saw the accused giving blows. Later Muhammad Mithal died. The accused went away, raising slogans. Due to fear, we did not follow them. The above-mentioned accused have killed Muhammad Mithal with hatchet-blows because there exists dispute between us over a `Qabuli' land for 2/3 years and a case to that effect is pending against Lai and others in the civil Court, and also about a year ago they had fallen out with us over the said land and such case against them is pending in the Sessions Court."
3. The F. I. R. Exh. 9 was recorded by the S. H. O. Muhammad Azim, who accompanied by the complainant proceeded to scene of offence and spent the night there. He visited the scene of offence in the morning on 28October, 1974 in presence of mashirs Haji Abdullah Siyal and Habibullah. The dead body of Mithal (deceased) was lying on the inspection path of "Sijawal distributory" near a "Dera" of paddy. There were blood marks on the ground and brown slipper and an old cap also lying with blood-stained marks on them. He secured the blood--stained earth and sealed it. He also secured the slipper and a cap from the scene of offence and prepared such mashirnama Exh. 26 in presence of the mashirs. He then prepared the Inquest Report Exh. 27 of the dead body in presence of mashirs and sent it to the Medical Officer through Police Constable Ghulam Nabi for post-mortem examination. He also saw weighing stales and weights at the "Dera" and so also paddy corn lying there but he did not secure any of these articles. He examined P. Ws.
Latif Ali and Roshan Ali. He then went to the village of the accused but they were not there. He, however, arrested all of them on 31st October, 1974 from their houses at 7 a.m. In presence of same mashirs and prepared such mashirnama of arrest Exh.
28. The accused Godo volunteered to produce a hatchet and led the mashirs and the Police to his house and produced a hatchet which was blood-stained. He secured it and sealed it in presence of same mashirs and prepared such mashir--nama, Exh.
29. The accused Kaloo, Dilloo, Muhammad Uris and Lal also volunteered one by one to produce hatchets and they led the mashirs and police to their houses and produced hatchets from there respectively. They were secured but there were no blood marks on any of the hatchets. He prepared such mashirnamas, Exhs. 30, 31, 32 and 33 in presence of same mashirs. He then got 164, Cr. P. C. Statements of the witnesses Lutif Ali and Roshan Ali recorded before the Resident Magistrate, Larkana on 2nd November, 1974. He examined P. W. Suleman on 4th November, 1974 and submitted the challan in the Court on 14th November, 1974. He sent the blood-stained earth and the blood-stained hatchet secured from the accused Godo to the Chemical Analyser for examination and report through S. P., Larkana.
4. The prosecution case is mainly based on the ocular testimony of the complainant Nek Muhammad, Roshan Ali and Lutif Ali, evidence of motive, recoveries of hatchets from the accused, Medical evidence and evidence of Mashir Habibullah and the Investigating Officer.
5. The accused however, denied all the allegations against them and claimed to have been falsely implicated by the prosecution witnesses who were inimical and hostile to them.
6, There is no doubt that the deceased Muhammad Mithal was murdered on the day and place of incident as stated in the F. I. R. Due to hatchet injuries. Dr. Niaz Hussain Solangi, who performed the autopsy on the dead body of the deceased Muhammad Mithal has been examined and he has stated as under: ---1. External appearance:
(a) It was a dead body of an adult Muslim male about 35 years of age, average built, well- nourished, eyes closed, mouth shut, rigor mortis present.
Clothes: A blue tetron shirt; a blue tetron shalwar, a white banyan, a Sindhi--cap, all blood-stained, handed over to P. C. Ghulam Nabi after furnishing post-mortem examination.th B. External injuries:
(1) An incised wound 4--' x cutting the cervical spinal column and spinal cord through and through leaving the neck to be attached with rest of the body by a small twing of skin on the enterior side of neck.
(2) An incised wound 3" x --" x scalp deep on the posterior side of head.
(3) An oblique incised wound 3--" x --" x cutting the skull cavity through and through, extending from the crown of head up to right ear (upper level).
(4) An oblique incised wound 4" x --" x cutting the skull cavity through and through parallel and --" posterior to injury No. 3.
(5) An incised wound 2--" x --" x muscle deep over the right scapular region of back.
(6) An incised wound 4'' x --" x cavity deep over the left illiac fossa.
(7) An abrasion 2'' x 1/6" over the` left illiac fossa, identical to injury No. 6.
(8) An incised wound 2--" x --" x cutting the lower end of left arm in two-thirds of its breadth.
(9) An incised wound 2--" x --" x --" bone deep above the injury No. 8.
(10) An incised wound 2--" x --" bone deep over the upper part of left forearm cutting radius and alna bones through and through.
(11) An incised wound 2--" x --" cutting deep right humerous bone through and through.
(12) An incised would 2--" x --" bone deep --" below injury 1.
(13) An incised wound 2--" x --" x cutting the left tibia and fibule bones through and through at their lower ends.
(14) An incised wound 2--" x --" x bone deep, --" above the injury No. 13.
(15) Multiple incised wound of varying measurements, separating the right from the left completely.
2. Cranium and skull cavity INTERNAL EXAMINATION
(a) Skull cut through and through injuries Nos. 3 and 4.
(b) Spinal vertebrae cut except arlas bone.
(c) Spinal cord in its cervical portion cut through and through alongwith its membrane.
(d) Brain and its membranes cut and highly damaged corresponding to injuries Nos. 3 and 4.
3. Thorax Thoracic cavity not opened because of the evident cause of death.
4. Abdomen
(a) Abdominal wall in its left illiac fossa region cut through and through.
(b) Peritoneum cut corresponding to injury No. 6 already mentioned.
(c) Stomach contained fully digested food material alongwith gases.
(d) Small intestine contained semi-formed foscal matter alongwith gasses.
(e) Large intestines contained fully formed foscal matter alongwith gases.
Probable time between death and injury: Death was instantaneous. Time between death and post-mortem was about 24th hours.
From internal and external examination of the dead body I am of the opinion that death has occurred due to severe damage of vital organs like brain and spinal cord, which was the result of injuries Nos. 1, 3 and 4 already mentioned, caused by means of hatchet injuries. These injuries were anti-mortem in nature, individually as well as collectively were sufficient to cause death in ordinary course of nature. I issued such post-mortem rotes which I produce as Exh. 24 which is same correct and bears my signature.
XXX to Mr. Mumtaz Ali Jaferi for all the accused-Probable time between death and last meals taken was about 4 to 5 hours.
No. Re."
7. The question therefore, for determination is whether the offence was committed by the appellants or sombody else? In this regard the prosecution has led the evidence of eye-witnesses, motive, medical evidence and the recoveries of hatchets.
8. We will first of all examine the ocular testimony. The complai--nant Nek Muhammad P. W. 3 who is father of the deceased Muhammad Mithal has stated before the trial Court that he got paddy cultivated through Muhammad Suleman, who had come to him in the morning on the day of incident to inform that "Dera" was ready for "batai". He informed him that they would come there for "batai" in the evening, and he along with his son Muhammad Mithal (deceased) left their house for the ---dera" at about "Bepahri" time and they took "challis" i.e. Weights and measures appliances including scales with them. When they reached in their "dera", they found Muhammad Suleman missing as he had gone to arrange for a bullock-cart. He and Muhammad Mithal (deceased) therefore, went to look after the paddy crop leaving the scales at "dera" When they returned after seeing their crop, they found all the five accused armed with hatchets out of them,. Godo gave fist blow of his hatchet to Muhammad Mitlial, which was followed by Lal and others. Mithal (deceased) fell down on the ground and the accused then cut his legs and arms with their hatchets. The complainant raised cries which attracted Lutif Ali and Roshan Ali who also came there and saw all the accused causing injuries to Muhammad Mithal (deceased). They ran away after killing Muhammad Mithal. The complainant leaving Lutif Ali and Roshan Ali over the dead body went to lodge the report at Police Station Miro Khan, which was accordingly recorded. The motive for the commis--sion of the murder has been shown by the complainant to be a dispute over agricultural land between the complainant party on the one side and the accused on the other for which a civil suit was pending between the parties in the Court. The eye-witnesses Roshan Ali and Lutif Ali have also supported the complainant before the trial Court and have stated that they had heard the cries of the complainant and having rushed up to the scene of offence, they had seen the accused causing blows to the deceased Muhammad Mithal and running away after killing him and the complain--ant then went to lodge report after leaving them over the dead body.
9. Mashir Habibullah is on the point of recoveries of hatchets from the accused who has supported the recoveries from all the accused and so also the Investigating Officer Muhammad Azim, who was S. H. O. At Police Station Miro Khan. It has been stated by both of them that it was only accused Godo, who produced the blood-stained hatchet and all the hatchets produced by the rest were not blood-stained.
10. Mr. A. K. Brohi, the learned counsel for the appellants has contended that in spite of the fact that it was P. W. Suleman who had informed the complainant about the "barai" of paddy and it was in respond to his information that .The complainant and the deceased had gone to "dera" for "batai", still he has been examined on 4th November, 1974 by the Police but has not been examined in the Court even to corrobo--rate that the complainant and the deceased were expected to come on the land on the fateful day.' Moreover neither any independent witness has been cited nor examined by the prosecution in this case. The P. Ws. Roshan Ali and Lutif Ali are uncle and nephew respectively and very closely connected with the complainant therefore, no reliance can be placed on their evidence in view of their close relationship with the com--plainant and also because of their presence being by chance on the scene of offence. It has come on the record that many other people also came on the scene of offence after the incident but not a single one out of them has been examined to corroborate the version of the prosecution witnesses Who are interested and closely related to the complainant as well as to the deceased.
11. As far as recoveries are concerned, it was Haji Abdullah co-mashir who was examined in the lower Court, but he did not support the prosecution case and it was on account of it that be has not been examined in the Court of Session and instead Mashir Habibullah has been examined who is closely related to the complainant. It has also been contended that the incident being of a broad daylight and there being as many as fifteen injuries on person of the deceased still not a single independent person has supported the prosecution case which showed that it was unwitnessed crime and the motive for commission of the murder, was other than what has been shown by the complainant. The prosecution has utterly failed to prove the guilt of the accused and they are entitled to benefit of doubt under the circumstances of the case.
12. Mr. Murtaza Hussain, the learned counsel who has appeared for the State, has on the other hand contended that it was not always necessary to have corroboration of interested witnesses. It is the totality of evidence which counts and there are as many as fifteen injuries on person of the deceased which itself is a convincing circumstance that all the accused have participated in commission of the crime. The "chhallis" i.e. Appliances for weights and measures having found on the scene of offence have amply proved that the complainant and the deceased had come for the purposes of "ratai" on the "dera" when the deceased was done away to death by the accused.
There being strong motive for com--mission of this offence and the incident being of a broad daylight which has been witnessed by as many as three eye-witnesses and corroborated by the recoveries of hatchets from the accused stand proved against the accused beyond any reasonable doubt, and there is therefore no merit in this appeal which is liable to be dismissed.
13. We have carefully examined the evidence on record and have also considered the contentions of the learned counsel for the appellants as well as State. The ocular testimony consists of the complainant, Roshan Ali and Lutif Ali. The incident is of a broad daylight which has occurred in the open "dera" and the testimony of the complainant who is father of the deceased requires strong corroboration of independent witnesses in a case of this nature. The corroboration has been provided by the eye--witnesses Roshan Ali and Lutif Ali who are admittedly uncle and -nephew respectively. P. W. Roshan Ali is brother of Ghulam Nabi who is father of Lutif Ali. It has also been admitted by P. W. Roshan Ali in the lower Court that Mst. Sharma were of Ghulam Nabi is sister of the com--plainant Nek Mohammad though this suggestion has been denied by him in the trial Court but his admission has been brought on the record as extract Exh.
18. The complainant himself has also admitted in the lower Court that, "Mst. Sharma, were of Ghulam Nabi is daughter of Tharo, my uncle" though he has denied this suggestion in the trial Court but his admission about it has been brought on the record vide extract Exh.
13. He has however admitted in the trial Court that Mst.
Panah who is daughter of his sister Mst. Fattan, is were of Ghulam Nabi.
There are other contradictions also between the evidence of the complainant and P. W. Roshan Ali on admitted facts and all these factors do not inspire confidence in their evidence. For instance, Ghulam Nabi, who is father of P. W, Lutif Ali has been admitted by P. W. Roshan Ali to be his brother and so also the complainant in the lower Court. But the complainant even denied this fact in the trial Court if Ghulam Nabi was brother of P. W. Roshan Ali and if it was stated by bim in the lower Court though his admission in the lower Court has been brought on the record as extract Exhs. 14.
The complainant apart from what has been said above has made contradictory statements regarding his relationship with Tharo, marriage of his daughter Sharma and three wives of Ghulam Nabi and suchs extracts of his admission in the lower Court have been brought on record as Exhs.
10, 11 and 12. This leads to only conclusion that there is deliberate effort on part of the witnesses to tell lies and it is very difficult to maintain the conviction on such a testi--mony. Moreover P. Ws.
Roshan Ali and Lutif Ali are chance witnesses who apart from being related to the complainant and the deceased have not been able to establish their presence on the scene of offence at the time of incident as their evidence is full of contradictions. We therefore doubt if they were actually present on the spot on the day of the incident.
It is very strange that P. W. Sulleman who had cultivated paddy of the complainant and it was at his instance that the complainant and the deceased bad gone on "dera" for "batai" has not been examined to prove if the complainant and the deceased were expected to go on "dera" on the day of the incident. It casts shadow of doubt if the complainant was actually expected to go for "barai" of "dera" and he had gone on the scene of offence on the fateful day. It is therefore presumed that P. W. Sulleman would not have supported the prosecution case in case he was examined in the trial Court.
14 The corroboratory evidence for recoveries comes from Mashir Habibullah who is also Mashir for scene of offence. He has admitted in cross-examination that the accused produced the hatchets about half an hour after preparation of mashirnama of `vardat' which showed that the accused were arrested on the next day of the incident and not on 31st October 1974 as shown by the Investigating Officer in the mashirnama of arrest Exh. 28.
We have even otherwise not believed the ocular testimony which consists of highly interested witnesses and is full of contradictions. We therefore hold that the prosecution has failed to prove the case against the accused beyond reasonable doubt and they are under the circumstances entitled to benefit of doubt. We accordingly accept their appeal, set aside their convictions and sentences and acquit them.
15. The judgment on this appeal was announced by a short order earlier and foregoing are the reasons for allowing it.