NASIR ASLAM ZAHID; J.--This appeal under section 410, Cr. P. C. Filed by appellant Siddiq son of Daim calls into question his conviction under section 302, P. P. C. And sentence of imprisonment for life by the learned Sessions Judge, Badin, vide his judgment dated 23-11-78. Before the trial Court there were 8 accused but only the appellant before this Court was convicted and the remaining 7 accused, namely Soomar, Hote Khan, Muhammad, Amir Bux, Ahmed, Dossoo and Sharif were given benefit of doubt and were acquitted of the charge under section 148/366/149/302/323/324; P. P. C.
2. The incident in this, according to the prosecution, took place on 25-12-1974 at about 8 a. m. F. I. R.
Was lodged by Hashim son of Abdullah (P. W. 1). As various, persons were involved in the F. I. R., it would be convenient to reproduce the entire F. I. R. Lodged by Hashim at 12 noon on the date of occurrence. The place of occurrence was mentioned in the F. I. R. As the house of Tharo Kapri (P. W.
3), situated in village Masti Khan Kapri, Deh Chan, Taluka Tando Bago, at a distance of 6 miles from Police Station Pangryo, District Hyderabad. The F. I. R. Was recorded by Head Constable Incharge Police Station Pangryo (P. W. 13). The F. I. R. Lodged by P. W. 1 Hashim reads as follows:- "I, my uncles Tharo, Latif, Abdullah, Ramzan and Talib are residing in our separate houses in village Masti Khan Kapri with one enclosure.
My uncle Tharo has a girl by name Alman. She aged about 16 years and is virgin, whose marriage is settled with Qasim son of Abdullah Kapri. Soomar Kapri is demanding the same girl for his son. But my uncle Tharo refused him and gave the band of girl to Qasim. Today in the morning at about 8 a.m. I, Tharo son of Mir Khan, Latif son of Sohram, Abdullah son of Sohram, Ramzan son of Allahyar and Talib son of Abdullah Kapri were sitting on our houses. In the meantime Hote Khan son of (word illegible)
2. Muhammad son of Daim. Amir Bux son of Pir Bux,
4. Siddik son of Daim,
5. Ahmed son of Bachayo,
6. Dosoo son of Dalal 7. Sharif son of Dosoo,
8. Soomar son of Ali Khan Kapri resident of village Masti Khan Kapri, Taluka Tando Bago came in the house of my uncle Tharo. Out of them Hote Khan was armed with gun and rest were armed with 'lathis' and hatchets, immediately they caught the hand of Mst. Alman daughter of my uncle Tharo and were forcibly taking her. Girl raised cries, we all went there running and tried to get the girl separated. Whereupon accused gave lathi and hatchet blows to Latif, we, Abdullah, Tharo and Talib, all fell down there. Blood was oozing out from the injuries. I also received lathi blows on my arm. Then accused forcibly took away Mst.
Alman, who was crying. Thereafter I went to Khalifa Hashim at his, village. I narrated him the above facts, who told me to lodge the complaint at the P. S. Then I accompanied with Latif and Talib have come to lodge the complaint, investigation may be done."
3. According to the F. I. R. Therefore, the 8 accused before the trial Court were charged under section 148, P. P. C. For being members of an unlawful assembly and to have committing rioting on the day and time mentioned in the F. I. R. At the house of Tharo having armed themselves with deadly weapons in prosecution of their common object. Another charge against all the 8 accused was under sections 366 and.149, P. P. C. For being members of the unlawful assembly at the said time and place and to have forcibly abducted Mst. Alman Khatoon (P. W. 8) daughter of Tharo.
They were also alleged to have committed the offence under section 302, P. P. C. Read with section 149 by killing Latif son of Sohrab and offences under section 323/324 read with section 149, P. P. C.
For causing simple injuries to Tharo (P. W. 3), Hashim (P. W.1). Abdullah brother of the deceased (P.
W. 5), Talib (P. W. 4) and Ramzan (P. W. 2).
4. All the 8 accused had pleaded not gull' and it was their case that Khalifo Hashim and others including the prosecution witnesses who were eye--witnesses bad come to abduct Mst. Alman, on which she raised cries and in the circumstances the accused coming to help rescued her and in the process there was a scuffle, in which both parties received some injuries. The accused made attempts to lodge an F. I. R. Against the other party, but the police refused to record the F. I. R. And in the circumstances, a direct complaint was filed by accused Hote Khan against Khalifo Hashim, Abdullah, Hashim, Qasim and Talib, all sons of Abdullah, and Ramzan son of Allahyar who were tried under section 366, P. P. C. By the same learned Sessions Judge, Badin in Sessions Case No. 242/75 and by his judgment dated 2-11-78 (21 days before the judgment dated 23-11-78 announced by the learned Sessions Judge in the present case) the trial Court acquitted 6 persons giving them benefit of doubt. It is accordingly an incident where counter-cases were filed by the two opposing groups against each other.
5. The prosecution case against the accused before the trial Court depended upon the ocular testimony of P. Ws. 1 to 5, namely Hashim, 'Ramzan, 'Tharu, Talib and Abdullah; corroboratory evidence of the 4 medical officers, namely Dr. Saifuddin (P. W. 6) who performed the post-mortem of the deceased, Dr. Muzaffar (P. W. 7) who examined the injuries on injured Abdullah, Tharo and Ramzan, Lady Doctor Suraiya Siddiqi (P. W. 14) who examined Mst. Alman for determination of her age which, on the face of the radiologist report, was given as 16 years on 31-12-74 and Dr. Abdul Majid (P. W. 15) who examined the deceased before he had died. Talib and Hashim son of Abdullah; recoveries and the report of the chemical examiner (Exh. 58). It is significant to note that lust.
Alman (P. W. 8) who was alleged by the prosecution to have been abducted by the 8 accused, gave evidence denying that the accused were the aggressors and had come to abduct her and on the contrary supported the story of the accused that it were the prosecution witnesses who were the aggressors and had come to abduct her and the accused were able to save her. In spite of her evidence going against the prosecution, no request was made for declaring her as hostile.
6. The trial Court, as observed earlier, acquitted all the other 7 accused and appellant Siddiq only was convicted of having caused the murder of deceased Latif but the appellant was not found guilty of any other offence including the offence under section 366, P. P. C. Of abducting Mst. Alman.
Following is the reasoning of the trial Court which led it to convict the appellant and acquit all the 7 other accused:- "In view of my discussion as above, injury No. 1 on Latif is proved to have been caused by sharp- cutting weapon and it has been declared by Medical Officer to be sufficient in ordinary course of nature to cause death. This Injury No. 1 is ascribed by Tharo at whose house incident occurred and who is injured himself to accused Siddiq alone. P. W. Ramzan has not implicated Muhammad for injury to Latif but he has implicated Ahmed and Siddique. Complainant Hashim, Talib, Abdullah have implicated Muhammad and Siddique for causing hatchet injury to Latif. In view of the clear- cut statement of Tharo and deposition of Ramzan the injury No. I stands proved to have been caused by accused Siddiq. However, motive is not properly proved and Latif had died after 14 days of receipt of the injury. Injury No. 2 cannot be ascribed to accused Muhammad as according to all injured eye-witnesses Latif was caused hatchet injuries with sharp side and not with blunt weapon.
According to Medical Officer Injury No. 3 on Latif was caused by fist blow. There is no ocular evidence that any fist blow was given to Latif by any accused. Point No. 3 therefore is answered accordingly that only accused Siddiq is proved to have caused fatal injury to Latif and brought his death without any provocation or any previous quarrel by deceased with accused. So far other accused are concerned, this point is answered as doubtful as the unlawful assembly and prosecution of common object to commit murder of Latif or to abduct Mst. Alman Khatoon are not proved.
7. From the judgment of the trial Court it follows that out of the 5 eye--witnesses, the trial Court did not believe the testimony of P. Ws. Hashim, Ramzan, Talib and Abdullah or otherwise some of the other co-accused would also have been found guilty. The conviction of the appellant before this Court has been based solely on the evidence of P. W. Tharo, father of Mst. Alman, who was supposed to have been abducted by the 8 accused. For a proper appreciation of the evidence which persuaded the learned Sessions Judge to find the appellant guilty of the murder of the deceased the entire examinations-in-chief of Tharo, aged 70 years, is reproduced herein: "Complainant Hashim, P. Ws. Abdullah, Latif, Ramzan and Talib are related inter se. All live within the same compound. Mat. Alman Khstoon is my daughter. I bad given the hand of my daughter Mst.
Alman to Qasim son of Abdullah. None of the accused had demanded the Sangh of Mst. Alman but they had forcibly abducted her away. About 2 and half years back one morning on the day of Haj, I was in my house when appeared accused Soomar who brought Muhammad Siddiq, Hote Khan, Amir Mux, Ahmed, Dosoo, Sharif. They were armed with hatchets and lathis. They at once took hold of Mst. Alman Khatoon. I raised cries which attracted Abdullah, Latif, Hashim, Qasim and Talib and Ramzan, who tried to rescue the girl. Latif requested accused not to take away the girl on which Hote Khan instigated others. Siddiq gave hatchet blow to Latif who fell down and went unconscious who was bleeding. Amir Bux gave me hatchet blow on my head. Ahmed gave lathi blow to Abdullah. Then the accused took away Mst. Alman Kahtoon. Hashim took Latif and Talib on bullock cart to Pangrio P. S. And lodged report. Police had come. My statement was recorded. I was sent to the hospital. My 164 Cr. P. C. Statement was recorded which I produce as Exh.
16. It is same correct and bears my L. T.I. All the accused are some present in Court."
8. P. W. Tharo in his evidence before the trial Court has made the following allegations:
(a) All the 8 accused came to the house of Tharo on the day of the incident armed with hatchets and lathis;
(b) all the accused took hold of Mst. Alman who raised cries, which attracted Abdullah, Latif, Hashim, Qasim, Talib and Ramzan who tried to rescue the girl;
(c) deceased Latif requested the accused not to take away the girl, on which Hote Khan instigated others;
(d) Siddiq gave hatchet blow to Latif who fell down and went unconscious and was bleeding;
(e) Amir Bux gave Tharo hatchet blow on the head;
(f) Ahmed gave lathi blow to Abdullah; and
(g) accused took away Mst. Alman Khatoon.
9. The evidence of P. W. Tharo and other prosecution witnesses regarding abduction of Mst. Alman has not been believed by the trial Court and, therefore, the entire evidence of the prosecution that the 8 accused were the aggressors does not inspire confidence. Except for the one line in the evidence of Tharo that the appellant gave hatchet blow to Latif, no other material part of the evidence of Tharo has been believed and in our view it is very difficult to support the conviction on one line of the evidence of Tharo when his entire other material evidence has not been believed by the trial Court.
10. According to P. W. Tharo, the appellant had given hatchet blow to Latif; Amir Bux had given hatchet blow to Tharo and Ahmed had given lathi blow to Abdullah. P. W. 2 Ramzan had also given evidence that the 8 accused had come to abduct Mst. Alman and they were the aggressors.
According to Ramzan, Ahmed and Siddiq gave hatchet blows to Latif, Soomar and Dosoo gave hatchet injury to the witness on his head and Abdullah and Tharo also received injuries. P. W. 1 Hashim also gave evidence about the abduction of Mst. Alman. According to this witness accused Muhammad and Siddiq have hatchet injuries to Latif, Soomar gave hatchet injury to Ramzan, Amir Bux gave hatchet blows to Tharo; accused Ahmed gave hatchet injuries to Abdullah; accused Amir Bux gave this witness lathi blows and Talib had also received injuries. P. W. 4 Talib who is the brother of P. W. Hashim also supported the prosecution story about the abduction of Mst. Alman and according to him, Amir Bux gave him hatchet blow on his head; Muhammad and Siddiq gave hatchet blows to Latif who fell down and went unconscious and was bleeding; his father Abdullah, Ramzan and Hashim also received injuries. P. W. 5 Abdullah, who is the father of P. Ws. Hashim and Talib and brother of deceased Latif, supported the prosecution story of abduction of Mst. Alman According to him, all the accused attacked the witness and others; Muhammad and Siddiq gave hatchet injuries to the deceased who fell down and went unconscious and was bleeding; Ahmed gave the witness lathi blow on account of which the witness became unconscious after a while.
According to this witness, Tharo, Talib, Ramzan and Hashim had also received injuries.
11. There are patent contradictions in the testimony of the eye-witnesses about the injuries caused as well as who had caused the injuries. According to four of the eye-witnesses (excluding P. W.
Tharo) at least 2 of the accused gave hatchet blows to the deceased and even on this there is discrepancy as to which two out of the accused gave hatchet injuries to the deceased. There are material contradictions in their respective statements before the trial Court as regards the type of injury, the weapon used and the accused who caused the injuries. Another factor which stands 'out is that the testimony of each of these eye-witnesses in slime material particular contradicts their respective statements recorded under section 164, Cr. P. C.
12. It is on account of the testimony of Mst. Alman and the patent contradictions in the respective statements of the eye-witnesses that the learned Sessions Judge came to the conclusion that no case bad been made out against any of the 7 acquitted accused. However; the trial Court was satisfied on the bare statement of P. W. Tharo that one hatchet blow had been given by the appellant to the deceased which resulted in his death after 15 days on 7-1-75. We are of the view that rightly having not believed the version of the prosecution that the 8 accused were the aggressors and had come to abduct Mst. Alman and having disbelieved the evidence of the 5 eye- witnesses to the effect that each of the 8 accused had caused some injuries to one or more of the 5 eye-witnesses in so far as the 7 acquitted accused were concerned, the conviction of the appellant could not be supported only on the bare statement of P. W. Tharo that a hatchet blow that caused the death of Latif was given by the appellant. We find great force in the argument of the learned counsel for the appellant, Mr. Abdul Fateh Memon, that practically the entire evidence of P. W. Tharo has been disbelieved by the trial Court, but believing just one line of his evidence regarding the hatchet blow caused by Siddiq, the trial Court wrongly convicted the appellant. In the circumstances of the case and on the basis of the evidence on record, the learned Sessions Judge rightly came to the conclusion that the 7 co-accused were not guilty of the charges against them but on the basis of the same evidence the trial Court should have acquitted the appellant also.
13. In this connection, the evidence of Mst. Alman, a prosecution witness who was alleged by the prosecution to have been abducted by the 8 accused, is also very important. This prosecution witness demolished the entire case of the prosecution but despite that no request was made to declare this witness hostile for purpose of cross-examination on behalf of the prosecution. We consider it proper to reproduce the evidence of Mst. Alman (P. W. 8) which is as follows:-- "About 3 years back when I was unmarried I was living in my father's house in village Gul Muhammad Kapri. My father and my brother Mir Khan were also living in the same house. When Shadman had proposed to marry with me my father asked him to give his sister Mst. Malookan and Mst. Soni to my brothers Mehar and Ali Murad respectively. After 7 or 8 days of these proposals one day at 7-30 a. m. It was Eid day when I was sitting in my house. There appeared Khalifo Muhammad Hashim, Hashim Kapri, Latif, Qasim, Talib Ramzan, Abdullah and came inside our house. Khalifo Hashim was armed with a pistol and he took hold of me and dragged me out. I raised cries, which attracted Usman Amir Bux Dosoo, Ahmed; Soomar and others. They tried to rescue- me but the accused took me away. Again says that the accused left me and I ran away alongwith my brother to my uncle Nimro's house. I did not see the fight nor can I, say as to who injured whom. Police had come after 7 or 8 days and recovered me from the house of my uncle Nimro. My statement was recorded. My 164 Cr. P. C. Statement was also recorded. I was also referred to lady doctor Hyderabad.
(Cross-examination to D. C. Mr. Haji Aslam Arain)
About 2 or 3 months after this incident I had married with Shadman. Khalifo Hashim and others wanted me to be married to Qasim son of Abdullah. I know the present accused in the Court; they are related to me. They had come at the time of incident and rescued me from Khalifo and others who were taking me away. At the time of incident some bad received injuries. I alongwith my uncle Nimro and brother Mir Khan bad gone to Pangiro Thana to file report but the police did not register our F. I. R. Then we went to Hyderabad and approached S.P. But our report was not taken. Thereafter we came to Badin and filed complaint before S. D. M., Badin. Khalifo Muhammad Hashim had filed writ petition in High Court, Sind through my father and the High Court had also recorded my statement and I was allowed to go with Shadman. It is incorrect that these present 8 accused were abducting me away. These 8 accused live within the same enclosure where our house is situated."
14. One of the points framed by the trial Court for determination watt as follows:- Whether at the abovesaid time and place all the 8 accused being members of unlawful assembly in prosecution of common object forcibly abducted Mst. Alman Khatoon daughter of Tharo?
The finding of the learned Sessions Judge on this point is as follows:- "There is no clear cut evidence to which party either complainant or accused came to abduct her.
She clearly had liking for Shadman and has married: him after the incident. She left the house of her father on the day of incident and went to the house of her uncle Nimro. Her father himself sustained injuries in the scuffle. Hence this point is answered as doubtful."
15. In view of the evidence of Mst. Alman Khatoon, a prosecution witness, and on account of the conflict intense in the respective statement of the five eye-witnesses, and the fact that four of the eye-witnesses have not been believed by the trail Court and a major part of the evidence of the fifth aye witness, P. W. Tharo, has also not been believed by the trial Court, it is not possible to sustain the conviction of the appellant before this Court solely on the evidence of P. W. Tharo. In this connection we may refer to a passage from the Judgment of Division Bench of this Court in the case of Imam Bux v. The State (1979 P Cr. L J 1008) at page 1012: "While we agree with the process of reasoning adopted by the learned Sessions Judge for acquitting co-accused Ismail and Badlo, we must point out that evidence against Ismail and Badlo was also furnished from the same source and by the same witnesses who had implicated appellant Imam Bux. When a witness implicated more than one accused, the Courts can divide credibility only in exceptional circumstances for it is difficult to comprehend how the evidence of the same witness can be relied upon in the case of one accused and disbelieved in the case of others. In such circumstances the fact of acquittal of co-accused strongly reacts in regard to the case against the remaining accused. For such reasons the superior Court of the country have on several occasions laid down rules of caution in acceptance of such testimony. A Division Bench judgment in the case of Saboo and others v. The State PLD 1965 Kar. 637 also refers to a situation of the same nature. In that case which one of murder evidence was furnished by three eye- witnesses. The names of two out of the several accused were not mentioned in the first information report so that they were acquitted and the remaining accused were convicted. On the appeal by the convicted accused even their conviction was set aside because according to the learned Judges the evidence of all three eye-witnesses became doubtful." In such circumstances it would be unsafe to uphold conviction of some of the accused while acquitting the rest when the eye- witnesses treat each one of the accused with the same brush. Under these circumstances it becomes necessary for the Court to look for corroboration before sustaining conviction of the convicted accused."
16. In the present case also we are of the view that it would be unsafe to up hold the conviction of one accused, who is the appellant before us, when the seven co-accused have been acquitted by the trial Court, only on the evidence of P. W. Tharo. Without corroboration through unimpeachable and independent evidence, conviction of the appellant on the sole testimony of P. W. Tharo cannot be sustained.
17. For corroboration, the learned counsel for the State has relied upon motive, recoveries and the deposition of the Investigating Officer. As regards motive, the abuction of Mst. Alman by the appellant Siddique and his acquitted co-accused has not been proved, as observed earlier, and in the circumstances we held that the prosecution has not been able to establish the motive as advanced by the complainant party.
18. As regards recoveries, evidence of S. H. O. Abdul Qudoos, who was incharge of the Pangryo Police Station during the relevant period is that he bad recovered one hatchet from the house of acquitted accused Soomar on 28-12-1974, another hatchet was produced on 12-1-1975 by acquitted accused Amir Bux from his house which was secured by the S. H. O. And on the same day i.e. 12-1-1975, acquitted accused Muhammad produced a blood-stained hatchet from his house so also appellant Siddique produced one blood-stained hatchet from his house, and these were also secured by the S. H. O. According to P. W. 16 Abdul Qudoos he had sent all the blood--stained articles to the Chemical Examiner. From the evidence of Abdul Qudoos it follows that he had recovered four hatchets, two of them, according to the witness, recovered from Muhammad and appellant Siddique were blood--stained but as regards the other two hatchets recovered from Soomar and Amir Bux he does trot say that these were blood-stained. However, from the evidence of Mashir Muhammad Bux (P. W. 12) the hatchets recovered from acquitted accused Soomar and Amir Bux were also blood-stained. In these circumstances there were four blood-stained hatchets recovered from four accused including the appellant but from the Chemical Examiner's report it appears that only two hatchets were sent to the Chemical Examiner. It has not been established by the prosecution as to which two hatchets out of the four hatchets recovered were sent to the chemical examiner. According to the, chemical examiner's report dated 11-5-1976 although the earth secured from to scene of incident was stained with the human blood but the two hatchet sent for examination were not found to be stained with blood, In the circumstances the Chemical Examiner's report cannot corroborate the. Prosecution story. We may further observe that the hatchets in question were recovered in December, 1974, an January, 1975, but the same were forwarded by the police to the chemical examiner on 11-5-1976 i.e. After 4 to 5 months; these were then received by the Chemical Examiner on 11-1-1975, which means that it took about six months for the parcel containing the items to reach from Badin to Karachi, and then the Chemical Examiner take another six months when he gives his report on 11-5-1976. There is nor explanation whatsoever for the inordinate delay that has taken place in the despatch of the items, receipt of the same by the Chemical Examiner at Karachi and for issuance of report by the Chemical Examiner. On this ground also the recoveries have no value as evidence for corroboration of the ocular testimony of P. W. Tharo. Evidence of P. W. 16 S. H. O. Abdul Quddus also cannot corroborate the ocular testimony of P. W. Tharo as regards the, injury caused by Siddique to the deceased.
19. We have come to the conclusion that the prosecution has failed to establish any case beyond reasonable doubt against the appellant. We accordingly allow this appeal and set aside the conviction and sentence of the appellant who is acquitted of the charge under section 302, P. P. C.
The appellant shall be released forthwith if he is not required in any other case.