B. G. N. KAZI, J.-Oghan alias Gulzar son of Saleh Mohammad, and Azam son of Din Mohammad, who were convicted by the First Additional Sessions Judge, Larkana, for an offence under section 302/34, P. P. C. And individually sentenced to undergo imprisonment for life, have filed appeal against their conviction and sentence. At the very outset it is observed that the learned First Additional Sessions Judge, had awarded lesser sentence for which the reason given was that both the accused are cousin and members of one family which is a mitigating circumstance. The aforesaid reason not having be4 n considered to be sufficient, notice was issued to the appellants to show cause why their sentence be not enhanced.
2. The facts of the prosecution case briefly stated are as under:-
3. Deceased Muhammad Nawaz, had asked for the hand of Timori, daughter of Din Mohammad, sister of accused Azam and cousin of accused Oghan and having received the promise of Din Mohammad, had paid Rs. 1500 to him. At that time Timori was a minor and when she attained the age of puberty, Mohammad Nawaz, reminded Din Mohammad of his promise but he refused to give Timori in marriage to him. Two or three days before the incident, Mohammad Nawaz had gone to complainant Pahilwan, who is his cousin and accompanied by him had again approached Din Mohammad, who however, flatly refused to give the hand of his daughter to Mohammad Nawaz. It is further the case of the prosecution that Din Mohammad had threatened that if they again asked for the hand of Timori he would teach them a lesson. Din Mohammad refused also to pay back the money paid to him by Mohammad Nawaz. Muhammad Nawaz was residing with Pahilwan, at the time of the incident. His brother Muheem and son Mumtaz were also present in his house. He, Mumtaz and Muheem went outside and on reaching Waris Dino minor which is at a distance of 100 paces from the house, they saw accused Azam and Oghan armed with hatchets going away and they challenged them when they saw them. It was further the case of complainant Pehilwan as stated in his deposition that they had declared that they had killed Mohammad Nawaz and had rescued their sister, Timori and had warned them not to intervene. The accused then ran away.
Mumtaz and Muheem were left near the dead body of Mohammad Nawaz who had hatchet injuries and Pahilwan went to lodge report to the Police. He went to Ratodero Police Station, where he lodged the F. I. R. The same day at 2 p. m. Mohammad Ismail, S. H. O. Of Ratodero Police Station recorded the F. I. R. Of Pahilwan and then proceeded to the place of occurrence which was situated near Waris Dino minor, in uncultivated land to the south. The dead body of deceased Mohammad Nawaz, was lying with hatchet injuries. In the presence of mashirs Thango Khan and Nabi Dad, he secured blood-stained earth and sealed it. He prepared the mashirnama of the scene of occurrence and also the inquest report. He sent the dead body of Mohammad Nawaz to the hospital for post-mortem examination through Police Constable, Azam and recorded the statement of witnesses, Muheem and Mumtaz. On. The same day he arrested both the accused and in the presence of the mashirs accused Oghan led him and the mashirs to the shade of his house from where he produced blood-stained hatchet which was sealed in presence of the same mashirs. He prepared mashirnama which was signed by him and the mashirs. He next arrested accused Azam who produced blood--stained hatchet from the corn-bin in the courtyard of his house. He prepared mashirnama accordingly and sealed the blood-stained hatchet. He sent the blood-stained earth and two blood-stained hatchet to the Chemical Analyser for examination and reports. The Chemical Analyser found all the three articles stained with human blood.
4. The main evidence considered by the learned Additional Sessions Judge, against the two accused is of the alleged eye-witnesses namely, complainant Pahilwan, his son Mumtaz and his brother Muheem. It may be stated here that complainant Pahilwan is cousin of deceased Mohammad Nawaz so that all the three alleged eye-witnesses are very near relatives of the deceased and therefore, are interested persons. There are admis--sions made by them which go to show that there is enmity of these witnesses with the accused. The very motive attributed to the accused is that they had killed Mohammad Nawaz, deceased, cousin of the complainant to get him out of the way as he had paid Rs. 1,500 for the hand of daughter of Din Mohammad and sister of accused Azam and cousin of accused Oghan. Complainant Pahitwan admitted in his cross- examination that he, his son Mumtaz and his brother Muheem are accused in the murder case of Abbas Bozdar, close relative of the accused. He further admitted that Iqbal had filed a case under section 307, P. P. C. Against Rajah, Safar, Muheem and Din Mohammad, father of accused Azam, and accused Oghan were witnesses in that case. The accused in that case; however were acquitted. P. W. Muheem in his cross-examination has stated that he was accused in case under section 307, P. P. C. In which Din Mohammad, father of accused Azam, and accused Oghan were wit--nesses against him. He has further admitted that he is facing trial for the murder of Abbas Bozdar. It is, therefore, clear that, not only are the alleged eye-witnesses interested persons but they are also admittedly having enmity with the accused. It is true that mere relationship of witnesses with deceased does not discredit their testimony if otherwise true and supported by corroborative independent evidence whether circumstantial or direct. In the instant case however, not only there are inherent weaknesses in the prosecution case as made out by the alleged eye- witnesses but their testimony is also not corroborated by independent direct or circumstantial evidence.
5. It is the case of the complainant Pahilwan that he as well as his son Mumtaz and his brother Muheem were sitting in their house at the time of the incident which he has shown in the F. I. R.
Lodged by him to be about noon time and in his deposition also he has stated that it was after breakfast when he was present in his house. The time of the offence which is of importance would be referred to at a later stage but suffice it to say that the alleged eye-witnesses have not explained their presence at the scene of offence. It is admitted by Pahilwan that he was at time working as Beldar in village Machhi which is at a distance of 4 miles from the place of occurrence and that his son Mumtaz who became Beldar later on, was at that time cultivating land about two miles distant from the village and further that his brother Muheem is also a cultivator and cultivates land which is about two miles from the place of occurrence. At that time of the day all the three of them should have been busy in their own fields doing their own work. There is no explana--tion whatsoever given by any of them to show as to why they all were sitting inside their house after breakfast.
6. It may further be observed that the version of P. W. Pahilwan who is also the complainant is different in his deposition and in the F. I. R. Lodged by him in which be has stated as under:- "The incident took place about 2 years ago after breakfast when I was present in my house.
Mumtaz my son and Muheem my brother were also present in the house at the time of the incident.
I. Mumtaz and Muheem went -outside from our house and we reached on Waris Dino minor which is at the distance of 100 paces from our house. I saw accused Azam and Oghan having hatchets in their hands were going and when they saw us they challenged us. Accused Azam informed us not to intervene as they bad 'killed Mohammad Nawaz and had rescued their sister Timori. Accused then ran away."
This evidence gives the impression, that Pahilwan did not see the murder actually committed and he and his brother and son only saw the accused going away carrying their hatchets. It is also significant to note that in his deposition complainant Pahilwan has not said anything about even hearing cries of the deceased so that even if the evidence is accepted at its best it amounts to the three witnesses seeing the accused going armed with hatchets. But in the F. I. R. Firstly there is difference in the time of occurrence which has beep stated to be at about noon time whereas in the deposition it was stated that it was after breakfast. Noon time is always after breakfast time but the indication given in the deposition which appears to be the correct version was that it was soon after break--fast time which could hardly be said to be noon time. The version about breakfast time is also supported by the evidence of the doctor who performed the post-mortem of the dead body of the deceased Mohammad Nawaz and has given the evidence that he found the stomach empty which goes to show that at the time that deceased was done to death he has not yet taken any meal.
7. To revert to the version of the complainant in the F. I. R. It may be pointed out that although in the deposition he had stated that Mohammad Nawaz was residing with him, in the F.I.R. He had stated that Mohammad Nawaz was residing in his separate house in the village. Further although as already stated Pahilwan had not mentioned the hearing of cries of "murder" ! "murder"! In his deposition, in the F. I. R. He had stated that there were such cries from the western side. The version given by him reads as under:- "Today near about noon time I and my son Mumtaz were present in our house. My brother Muheem was also present in his house. They raised cries of murder ! Murder ! From the western side. I, my son Mumtaz and Muheem rushed towards the cries. We went near and saw that accused Azam son of Din Mohammad Bozdar and his cousin Oghan alias Gulzar son of Saleh Mohammad armed with hatchets were giving sharp-sided hatchet blows to Mohammad Nawaz on his neck and head.
Mohammad Nawaz was lying on the ground. We challenge d the accused not to kill the man.
Where upon accused said that if we went near them they will also kill us. They further said that they have prevented many times, Mohammad Nawaz not to demand the hand of Mst. Timori but he did not refrain, hence they killed him and not got her free. Due to fear we did not go near."
The version in the F. I. R. Is that they actually saw the accused giving blows with sharp side of the hatchets. Witness Muheem also states that cries were heard from the west and he saw on reaching Waris Dino minor the accused Azam and Oghan giving hatchet blows to deceased Mohammad Nawaz. Similarly witness Mumtaz also mentions the raising of cries and having been accused Azam and Oghan giving hatchet blows to Mohammad Nawaz. The evidence of these witnesses is to be sifted and the grain separated from chaff. It is quite evident from the evidence of the eye-- witnesses that the house, where they are alleged to have been sitting is 100 paces away. This is more or less also evident from the plan prepared by Tapedar of the scene of offence, although as pointed out by him none of the eye-witnesses had showed the scene of offence to him-as complainant Pahilwan and witnesses Mumtaz and Muheem according to the Tapedar were in Jail custody when he had seen the place of occurrence. There is admission of the witnesses with regard to their being involved in a crimi--nal case due to which they had been put in Jail. This fact also is inciden--tally mentioned because it detracts from the creditability of the evidence. There is no independent evidence of witnesses although the Tapedar and other prosecution witnesses have admitted that there were cultivated lands nearby and it was the season of transplantation of rice. As already observed even if we accept the testimony of the prosecution witnesses that there was no one else at the scene of offence the cries could have been raised only by the deceased.
The evidence of the doctor shows that in all there were three incised injuries on the head and neck of the deceased and the causing of three injuries by two armed persons is a matter which can happen in a few seconds. The accused could not have waited till the alleged eye-witnesses had reached the Waris Dino minor before causing the aforesaid three injuries. While on the point of the injuries, it may be stated that there is discrepancy between the version of the eye-witnesses and the evidence of the doctor. Witness Muheem states as under:- "The accused had caused two injuries on the person of Mohammad Nawaz. Each of the accused had caused one injury to the deceased."
Obviously the evidence is contradictory to the doctor's evidence according to which there were three incised wounds not two and obviously through the evidence the witness appears to have tried to implicate both the accused by saying that each one of them had caused one injury.
8. Witness Mumtaz, surprisingly made an admission in his examina--tion-in-chief stating that he does not identify the accused person in Court. He however went on to name accused correctly.
9. For the reasons already given the evidence of the three alleged eye--witnesses who were undoubtedly interested persons and to their own admission on inimical terms with the accused requires corroboration by independent evidence. There is no such direct evidence although it is admitted position that the scene of offence was surrounded by cultivated lands and Tapedar Buksh Ali, has stated that transplantation of rice takes place in the month of August. However, leaving aside the direct independent evidence there is no corroborative circumstantial evidence in this case. No blood-stained clothes were recovered from the persons of two accused and the only allegation by the prosecution is that each of them produced a blood-stained hatchet which was found to have been stained with human blood by the Chemical Analyser in his report. Firstly no reliance can be placed on the evidence with regard to the recoveries inasmuch as Mashir Nabi Dad in whose presence the two accused are stated to have been produced the blood-stained hatchet has totally denied the fact. He has stated that accused Oghan did not produce blood- stained hatchet from his house and similarly that accused Azam had not produced bloodstained hatchet from his house or from the corn-bin. This witness was not declared hostile and in his cross- examination by the Advocate for defence he stated that he is illiterate and his thumb-mark had been obtained on the Mashirnama at the police station. This witness has gone further and has stated that deceased Mohammad Nawaz was a dacoit, thief and murderer and has murdered Lasharis and some other persons. The only other Mashir Thango Khan, has similarly denied that any of the accused produced blood-stained hatchet. He too was not declared hostile by the prosecution and therefore, there can be no question of accepting merely the testimony of the S. H.
O. On the point of recoveries. The learned counsel appearing on behalf of the State has referred to the decision of the Lahore High Court in Islamul Haq and 2 others v. The State (1974 P Cr. L J 6) in which recovery witnesses were won over and dropped by the prosecution. It was held that Investigating Officer deposing to recoveries was as good a witness as any other. In the instant case however, the prosecution did not have the two Mashirs declared hostile. Secondly although as already stated there is no reliable evidence with regard to the recoveries, the report of the Chemical Analyser is of no importance in that although the offence is stated to have been committed on 27th August 1976 and the two accused arrested and the recoveries made, the same day the same were received in the office of Chemical Analyser on 12th October 1976 and the aforesaid report could only be sent on 17th October 1977. There is no explanation as to why there was such inordinate delay in sending of the articles and why there was more than a year's delay in submitting the result of the Chemical Analysis. In the circumstances the report cannot be relied upon and there is no corroborative evidence which could be regarded independent and reliable in support of the evidence of the alleged eye-witnesses who are interested and inimical towards the accused.
10. For the reasons stated above we are of the opinion that the guilt of the appellants has not been established beyond reasonable doubt. The appeal is allowed. The conviction and sentence of the appellants is set aside and they are acquitted of the charge. They will be set at liberty if not required in any other case. The notice for enhancement of sentence, under the circumstances is discharged.