AJMAL MIAN, J.---By ibis common judgment we intend to dispose of Cr. Appeal No. 112/1980 and Cr. Suo Motu Rev. No. 61 of 1980. The four appellants, namely, Muhammad Yaqoob, son of Noor Muhammad, a Police Constable by profession, Faiz Muhammad, son of Aleem Khan, Ahmed son of Faiz Muhammad and Manthar, son of Ghulam Hussain stand convicted by the learned IInd Additional Sessions Judge, Larkana, under section 302/34, P. P. C. And have been sentenced to suffer life imprisonment and also to pay fine of Rs. 2,000 each or in default of payment of fine, each of them has to suffer further R. I. For 6 months, for the murders of Atta Mohammad and Bashir Ahmad both sons of P. W. 1 Himath Ali allegedly committed on 7th February, 1977 at 7 p.m. On the public Katcha road towards West near Khanwah Town, deh Khanwah at 4 miles from the P. S. Naudero. It was also ordered that if fine was deposited, the same should be paid to the heirs of the deceased. Appellants Yaqoob, Manthar and Faiz Mohammad were also sentenced to suffer R. I. For 6 months under section 323/34, P. P. C. Both the above sentences were to run concurrently. It may be observed that the above four appellants were tried alongwith Ali Mardan, son of Imam Bux for above murders, but the latter has been acquitted, and, therefore, he has not filed any appeal.
The F. I. R. Was lodged by the P. W. I complainant Himath Ali at 22-30 hours at the Police Station, Naudero on the same day. It was alleged that the complainant had 100 Jareebs of his own land in deh Pir Bux Bhutto and that on the day of the incident they started thrashing of the paddy. It was further alleged that the complainant, his two sons, namely, Atta Mohammad and Bashir Ahmed were also thrashing. It was also stated that at about 7 p.m. The Complainant's wife Mst. Hajan P. W.
2 and the complainant's younger son aged 12 years brought their meals at the field. However, the complainant and his sons told them that they would take the meals at home because they had to unyoke the bullocks of the thrasher. It was further alleged that the complainant, his wife Mst. Hajan were returning to their house through the Katcha track leading from the West to the East. While they were returning Atta Mohammad was ahead of them, whereas Bashir Ahmad was behind the complainant. It was also alleged that Ali Asghar, son of Ghulam Rasool, Jarwar, resident of Khan wah was returning towards the village from Naudero Town and met them on the way. It was also stated that at about 7.30 p.m. While the complainant party reached near the village appellant Faiz Mohammad challenged from the northern side of the track "be careful, you would meet to death". It was also stated that the complainant and Ali Asghar had torches and due to availability of electricity, the bulbs were also on. It was further stated that immediately on hearing the above challenge, they flashed the torches towards the challenge, and that on the light of bulbs and torches, the complainant party found and identified appellant Faiz Mohammad, son of Alam Khan Jarwar armed with his licensed single barrel gun, Ali Mardan, son of Imam Bux Manthar, son of Ghulam Hussain, Ahmed, son of Faiz Mohammad Jarwar (residents of their houses near village Mohammad Pannah Jarwar, Taluka Miro Khan) and Mohammad Yaqoob, son of Noor Mohammad Jawar, resident of village Khan wah, Taluka Ratodero, all armed with hatchets. It was also alleged that Faiz Mohammad fired his licensed gun at Atta Mohammad, who left the track and ran towards south in the field. It was also stated that upon receiving the bullet injury Atta Mohammad fell down.
Thereupon, Bashir Ahmed rushed towards Faiz Mohammad and challenged Faiz Mohammad "not to kill the man". Whereupon, Faiz Mohammad opened gunshot at Bashir Ahmad. Manthar inflicted hatchet blow on the head of the Bashir, Ahmad also inflicted hatchet blow on the left arm and Mohammad Yaqoob inflicted blow on the right thumb of Bashir Ahmad. After receiving the above injuries Bashir Ahmad also fell down. It was further alleged that thereafter accused started running, who were chased by the complainant party including Ali Asghar. It was also stated that Manthar inflicted hatchet blow on the left arm of Ali Asghar which struck him like abrasion. It was further stated that after the accused ran away, the complainant party found that there was gun shot injuries on the chest and back of Atta Mohammad and because of which he had expired. The complainant party also found gun shot injury passing through and through on the right side neck of Bashir Ahmed and also hatchet injuries on the head, left arm, right thumb and on other parts of his body, which were bleeding and because of that he also expired. It was also alleged that there was injury like abrasion on the left wrist of Ali Asghar, and that Haji Mohammad Amin, son of Bakhshan and Ghulam Mustafa, son of Haji Mohammad Amin by caste Jarwar, resident of Khan Wah came to the complainant on hearing the gunshot reports and cries, who also found gun injuries on the persons of Atta Muhammad and Bashir Ahmad, woo had died. It was also stated that leaving the above witnesses over the dead bodies, the complainant had come to lodge the report at the police station and that the accused in collusion with each other formed an unlawful assembly and had murdered his sons, namely, Atta Mohammad and Bashir Ahmad by firing gunshot and inflicting hatchet blows. It was further stated that about 3-4 years back deceased Mohammad Ishaque, brother of appellant Faiz Mohammad was murdered, the complaint was lodged at P. S. Ratodero against deceased Atta Mohammad and others and that deceased Atta Mohammad and others were challaned but after trial, they were acquitted. It was also stated that the above accused had shifted from village Khan Wah to near the village Mohammad Punnah Jarwai, Taluka Miro Khan.
2. (a) The prosecution case rests on the ocular evidence of the 3 alleged eye-witnesses, namely, P.
W. 1 Himath Ali, the complainant and the father of the deceased, P. W. 2 Mst. Hajan, mother of the deceased and P. W. Ali Asghar, a close relation, of the complainant P. W.
3. The testimony of the above eye-witnesses had been sought to be corroborated by the evidence of P. W. Haji Mohammad Amin Exh.
16. The prosecu--tion has also relied upon the motive disclosed in the F. I. R.
And the recoveries of empties from the place of wardat, recoveries of licensed .12 bore gun from appellant Faiz Mohammad and, recoveries of the blood--stained hatchets from appellants Manthar and Ahmad and so also on ballistic expert report Exh. 34 and chemical Analysers' report Exh. 35, which are in the affirmative.
The prosecution has also examined in addition to the above 3 alleged eye-witnesses P. W. 4 Haji Mohammad Amin P. W. 5 Rab Rakhio (a police constable, who had carried the dead bodies of the deceased to the medical officer, Ratodero for post-mortem), P. W. 6 Dr. Nooruddin who carried out post-mortems and prepared post-mortem reports Exh. 21 and 22 and the medical certificate of P.
W. Ali Asghar Exh. 23) P. W. 8 Roshan Ali one of the mashirs to the mashirnama of search of the persons of the accused Exh. 27, mashirnama regarding production of gun by accused Faiz Mohammad Exh. 28, and mashirnamas regarding the recoveries of the hatchets Exhs. 29, 30 and 31, P. W. 9 Ali Anwar, the investigation officer and P. W. 10 Mohammad Uris Tapedar, who prepared the sketch of place of wardat Exh. 37.
(b) The accused in their statements under section 342., Cr. P. C. Denied the factum of having committed the above murders. Accused Mohammad Yaqoob in his statement has stated that his father Noor Mohammad had appeared as P. W. Against Piral, Hakim and another, who and the P.
Ws. To the instant murder cases are inter se related. He has further stated that on 7th February, 1977 he was posted as the Treasury Guard at Kotdiji, District Khairpur, and was on duty at the time of the incident. He has also stated that he was involved falsely on account of enmity.
Accused Faiz Mohammad in his statement admitted the fact that his brother Mohammad Ishaque was murdered, but has denied, of having committed the two murders in order to take revenge. He has further stated that he is an innocent person.
Accused Ahmed in his statement has stated that he is son of accused Faiz Mohammad and that he is innocent and that P. Ws. Have deposed against him as they are interested, hostile and inimical.
Accused Manthar in his statement also stated that he is innocent and he has been falsely implicated and that the witnesses are interested, hostilo and inimical to the accused party. He has further stated that he is son of sister's of co-accused Faiz Mohammad.
Ali Mardan who was an accused alongwith the present 4 accused/ appellants and who has been acquitted also denied the factum of having committed the murders and he, also stated that he has been falsely implicated and that he is son of sister of accused Faiz Mohammad. He has further stated that P. Ws. Arc, interested, hostile and inimical.
3. (a) Reverting to the testimony of the alleged eye-witnesses, it may be observed that P. W. I complainant Himath Ali has in his deposition reiterated the facts mentioned by him in the F. I. R. In his cross-examination he has stated that the 4 accused gave I injury each with hatchet to Bashir Ahmed. He has admitted that Roshan one of the mashirs is brother of P. W. Ali Asghar and that P. W.
Ali Asghar and P. W. Roshan Ali are cousins of his wife and he was marote of the above two P. Ws.
He has further stated that Mst. Mariam is wife of P. W. Abdul Majeed, who is the daughter of Usman, who died in Jail and who was convicted in a case causing injury to Mohammad Ishaque brother of accused Faiz Mohammad, who wars subsequently killed for which his son Atta Mohammad was facing trial but was acquitted. He goes on to state that Roshan Ali is cousin of Hatim, the mother of Jamaluddin is Mst. Samul and that the name of mother of Piral is Mst. Fatima. He has denied that Mst. Fatima and Mst. Samul are real sisters. However, he has admitted that Manzoor is son of Gullan (one of the, mashirs, who has not been examined by the prosecution). He has further stated that Manzoor was also accused in the murder case of Ishaq. He has denied that his wife is sister of Hakim or that Piral is brother of his wife Hajan. He has also stated that prior to this incident accused Faiz Mohammad had filed a case against him and in that case Manthar, Ahmed and his brother Abbas and Ali Mardan were witnesses against him, and that Hakim was murdered prior to this incident. He has further stated that in the murder cases of Hakim, Ahmed, Ali Mardan, Manthar and Abbas were accused but all of them were acquitted. He has also stated that he was not convicted in the case of fire filed by Ali Mardan the present accused. He goes on to state that Hatim was a witness in the murder case of Hakim and accused were Manther, Ali Mardan, Ahmed and one Abbas. He has also stated that Mohammad Siddique is not brother of P. W. Abdul Majeed, and that Mohammad Siddique was convicted in the injury case of Mohammad Ishaque. He has further stated that his son Atta Mohammad and Manzoor son of Guilan were accused in the murder case of Mohammad Ishaque. He has further stated that accused Ali Mardan was prosecution witness against his son Atta Mohammad in that case. He has admitted that accused Faiz Mohammad, his brother Ishaque, Mst. Karimat, Imam Bux and Mst. Lalan were injured near a mosque and in that case Sohrab, Hakim, Qaim, Kaman and Piral were accused and that because of that Mst. Lalan died. He has further stated that Mst. Karimat is mother of accused Ali Mardan. He has admitted that A. Sattar bad filed a murder case against Ali Mardan and another and in that case Hatim and Karim Bux were the witnesses of complainant Abdul Sattar.
He has also deposed that priot to this incident Ishaque had filed injury case against .Him, Siddique, Usman, Wadhal and Abdul Sattar and that they were acquitted in that case. He has further deposed that the present accused Ali Mardan and Manthar were witnesses in that-case. He has also stated that he bad gone to the P. S. All alone on foot and that Naudero P. S. Is about 4-- miles from the wardat. He has denied the suggestion that S. H. O. Obtained oral evidence. He has voluntarily stated that as soon as be reached the police Station, he lodged the F. I. R., which was recorded by the S. H. O. And thereafter he proceeded to the wardat. He has further stated that there were about 200 houses in their village, and the people of different castes were residing there. He has also deposed that on hearing cries, the other people of the village also came at the place of rardat, but first P. W. Muhammad Amin and Ghulam Mustafa reached the place of wardat and that the other people who had come after the incident belonged to other castes. He has also stated that Ali Asghar was having torch which he produced before the police at the wardat. He has further stated that he had not shown to the police the place where they were thrashing the paddy, which was about 14-15 paces away from the place where the murder had taken place. He goes on to state that they bad started thrashing paddy on the day of the incident. He has also stated that be had asked his wife to bang the dinner and, therefore, she had brought the same. He goes on to state that be was not in a position to say for what work P. W. Ali Asghar had gone to Noudero. He has also stated that the village of the accused is about 8-10 miles away from village. He has admitted that accused Yaqoob was a police man and during the period of the incident, he was posted in Kotdiji. He has further admitted that accused Yaqoob is son of Noor Muhammad, who was witness against Hakim, Piral, Karim Bux and others. He has further admitted that Noor Muhammad father of Yaqoob was witness in the injury case against Usman, Siddique, Abdul Sattar and others. However, he has denied that P. W. Abdul Majeed is the husband of the daughter of Usman. He has further denied having stated in the F. I. R. That as soon as Atta Muhammad was fired upon Bashir ran towards the accused. He has admitted that Piral and Ghulam Rasool are brothers inter se and that Ghulam Rasool is father of P. W. Ali Asghar. He has denied that Yaqoob was not present near the wardat or that he was in fact at Kotdiji on that particular date and time.
(b) P. W. 2 .Mst. Hajan, mother of the deceased has more or less stated what has been stated by her husband P. W. 1 Himath Ali. However, she has contradicted her husband on certain material points. In her cross-examination she has stated that thrashing of paddy started about a week prior to the incident, whereas her husband has stated that it had started on the day of the incident.
Similarly she has stated that she used to take meals for her husband and sons daily and it was a routine matter for her, where as her husband has stated that he had asked his wife to bring the meals on that particular day. She has also stated that some persons who were thrashing the paddy near their land had seen the accused. She has also stated that they (i. e. Complainant party) narrated the incident to all the villagers, who bad come at the place of wardat and that they belonged to different castes including Koris, Mochis, Khatris, Sheikh Jarwars, Bhuttas and Syed etc. She has further stated that the meals which she had taken for her husband and sons were with her at the wardat which was seen by the police at the wardat. She has further stated that P. W. Ali Asghar is her cousin and that he remained at the wardat till the arrival of the police. She goes on to say that the police reached the wardat before Somahni prayer and remained at the place of wardat for the night and that on the next morning her husband Himath Ali lodged his F. I. R. With the police at the wardat she has also stated that Mst. Samul and Mst. Fatima are sisters inter se and that P. W. Abdul Majid is brother of Muhammad Siddique: She has further stated that since 30-40 years; there are cases and counter cases between the parties namely i. e. The complainant and the accused parties. She has also stated that it is a fact that P. W. Gullan and Roshan Ali were called by the police at the wardat, and that these person were called by the police on the following day in the morning. She has denied the suggestion that the incident had taken place at Manjhand time. She has admitted that Hakim is her brother, Piral is her uncle, Hatim is her cousin. She has further stated that Piral is uncle of Sahibdino and Jamal, but she does not know whether Sabibdino and Jamal were haris of Dr. Nooruddin Qazi. She has denied the suggestion that P. W. Ali Asghar has not received any injury on the place of wardat.
(c) The next eye-witness in the case as mentioned hereinabove is P. W. 7 Ali Asghar, who has deposed that he knew deceased Bashir Ahmad and Atta ltluhammad and complainant Himath Ali and also Mst. Hajan and Abdul Majid. He has further deposed that about 2 -- years back he had gone from his village to Naudero for purchasing cells for his torch and that after purchasing the cells he was coming back. He has further stated that at 7 p m. When he reached about 2-3 paces away from the village, he found Bashir Ahmad, Atta Muhammad, Himath Ali, Mst. Hajan, Abdul Majid and Nisar Ahmad and saw that these pe sons were; taking away bullocks. He has also deposed that he also saw accused Faiz Muhammad, Muhammad Yaqoob, Ahmed, Ali Mardan and Manthar.
He further saw that accused Faiz Muhammad was armed with gun and the rest of the accused were armed with hatchets. He has further stated that accused Faiz Muhammad is his maternal uncle, accused Ahmed is his marot and other accused are his near relations. He goes on to state that accused Faiz Muhammad gave hakal to deceased Atta Muhammad "Khabardar I" and thereafter he fired at Bashir Ahmed, who on receipt of the fire fell down on the ground. He has further stated that accused Yaqoob, Ahmed, Ali Mardan and Manthar gave hatchet blows to Bashir and that he tried to intervene and on that accused Manthar gave him a hatchet blow on his left arm. He has further eposed that accused Faiz Muhammad had also given gun injury to Atta Muhammad and that the incident was witnessed by him, Himath Ali, Mst. Hajan and Nisar and that on their cries Haji Muhammad Amin and Ghulam Mustafa came, to whom they narrated the incident. He has also deposed that at the time of the incident there was electric light and that he had also a torch which he had flashed. In his cross-examination, he has stated that he bad gone for purchasing cells at 10 a. m. And that he remained in Naudero town till the time, he came back in the evening at about 7 p. m. He has also stated that there were 200 houses in village Khanwah where six-seven castes people lived. He has further stated that he was not marot of complainant Himath Ali and that he had not stated so in his 164 statement. He has also stated that after the incident 200 persons had collected from Khanwah but they came after the accused had run away, and that those people were from different castes. He has denied the suggestion that be had not witnessed the incident. He has also stated that Hatim is his cousin. He has further stated that he does not know if his elders had got any dispute with the accused. He has also stated that though he needed cells since a month earlier, but on the day of incident be had gone to purchase the same. He has further stated that accused Yaqoob who was posted in Kotdiji but at the time of the incident he was on leave and was present in their village and had come to Khanwah on the day of the incident at about 2 p. m. In a jeep and after committing murder alongwith co-accused had gone back in the jeep to his place of posting.
(d) P. W. 3 Abdul Majeed as pointed out hereinabove was a mashir to the Mashirnama for the torch produced by the complainant Exh. 9, for the 4 empties recovered from the place of wardat Exh. 10, for the 2 inquest reports Exhs. 11 and 12 in respect of the two deceased, for the injury on the person P.
W. Ali Asghar Exh. 13 and also mashir to the mashirnama in respect of the torch produced by P. W.
Ali Asghar Exh.
14. In his cross-examination he has stated that Mohammad Siddique is not his brother, whereas P. W. 2 Mst. Hajan in her deposition has stated that P. W. Abdul Majid is the brother of Mohammad Siddique. He has further stated that he knew Mohammad Ishaq brother of accused Faiz Mohammad, who was injured by Mohammad Siddiq who was convicted. He has further stated that the police came at the wardat in the night and that the empties were secured in the night but mashirnama was prepared in the morning. He has further stated that from the place of wardat, he had gone with the police to the houses of the accused where the police conducted search of the houses of the accused but they were found missing. He goes on to state that the empties were sealed at the place of wardat, but the police had not brought the stamp at the wardat and therefore, the sealed empties were stamped at the police station. He has also stated that he was at the wardat when the complainant brought the police at the place of the wardat and so also his co- mashir Jamaluddin. He has further stated that the complainant is related to him and so also accused. He has also further stated that P. W. Ali Asghar was called by them from his house.
(e) P. W: Haji Mohammad Amin has deposed that he knows complainant Himath Ali and also knew deceased Atta Mohammad and Bashir, who were sons of the complainant and that they were his co-villagers. He has further deposed that about 2 years and 2 months back deceased Ahmed and Atta Mohammad were killed. He goes on to state that after the sunset, he was sitting in his house, when he heard cries and gunshot reports from the western side, thereupon, he' rushed to the wardat, where he saw Atta Mohammad and Bashir lying injured at the place of wardat. In his cross-examination, he has stated that Ghulam Mustafa is his son and Mst. Nooral is his wife and that she is not sister of complainant Himath Ali. He has also stated that P. W. Roshan Ali is brother of P. W. Asghar, who is also a mashir in this case. He has further stated that he does not know if Asghar is cousin of Mst. Hajan. He has further stated that he does not know that Mst. Mariam is wife of P. W. Abdul Majid. He goes on to state that many people came at the place of wardat, but he does not know if the people of other castes had also come. He has denied the suggestion that he was deposing falsely on account of his relationship. He has also stated that accused's village Mohammad Punnah Jarwar was about 5-6 miles away from Naudero P. S. And that there were 4-5 houses in village Pannah Jarwar out of which 3 were of the accused. He has further stated that he knows Noor Mohammad father of accused Yaqoob but he does not know if this Noor Mohammad was a witness in the murder case of Usman and Piral. He also stated that accused Yaqoob is a police man but at the time of this incident he was present at the place of wardat.
(f) P. W. Dr. Nooruddin has deposed that on 8th February, 1977 he was working as the Medical Officer at R. H. C. Rato dero and that the Naudero police sent to him dead body of Bashir Ahmad, son of Himath Ali through the police constable Rab-Rakhio for post-mortem and report. He has further deposed that the body was identified by Abdul Sattar cousin of the deceased and Piral a relative of the deceased. He has further deposed 'that he started post-mortem examination at 1 p. m. And completed it at 2 p. m. On the same date. The body was of male, muslim adult of 16 years, well built and rigor mortis was present all over the body. On the external examination he found the following injuries on the person of the above deceased : "(1) Lacerated oval wound 2" in diameter at the right side of neck piercing inside containing pieces of gutta.
(2) Lacerated of oval wound 1--- in diameter at the right side back of neck communicating with injury No. 1.
(3) Incised wound 3'' x 1" x muscle deep 2" above the left elbow lateral aspect.
(4) Incised wound 1----- x ----- x muscle deep at the route of right thumb.
(5) A bruise, ----- in diameter at the left iliac region.
(6) Incised wound 4" x 3/4" y brain deep at the mid parietal region.
(7) Three lacerated oval wounds 1/6 in diameter each superficial at the right knee".
On internal examination he found the following injuries, "(1) Brain matter damaged at the site of injury. Stomach was empty"
He opined that death was due to shock and haemorrhage as the result of injuries caused by fire arm and the hatchet injuries and that all the injuries were ante mortem in nature and that injury No. 6 individually and all collectively were sufficient to cause death in the ordinary course of nature.
He further opined that injuries Nos. 1, 2 and 7 appear to have been caused by discharge of fire arm whereas injuries Nos. 2, 3, 4 and 6 appear to have been caused by sharp cutting weapon such as hatchet. He has also opined that injury No. 5 appears, to have been caused by a hard substance such as lathi or backside of hatchet and that probable time between death and injuries was about 5 minutes and between death and post-mortem was about 24 hours.
He has further deposed that on the same day the Naudero police also sent the dead body of deceased Atta Mohammad, son of Himath Ali for post-mortem examination through the same police constable P. W. Rab Rakhio. His body was also identified by Abdul Sattar cousin and Piral a relative of the deceased. He has further deposed that he started post-mortem examination at 2 p. m. And finished the same at 3 p. m. On the 'same day. The body was of male aged about 22 years, well built. He has further deposed that rigor mortis were present on all over the body. On external examination, he found the following injuries on the person of the deceased "(1) Lacerated oval wound 1" in diameter at the lower part of left scapula, penetrating inside the chest.
(2) Three lacerated oval wounds ----- in diameter each at the left side of chest, two near the left nipple and one between the sixth and seventh ribs."
On internal examination he found the following injuries "(1) Left Lung punctured at the site of injury. Heart was punctured. Left scapula was fractured at the site of injury. Stomach was empty."
He opined that the death was due to shock and haemorrhage because of the injuries caused by a discharge from fire arm and that the injury was ante mortem in nature and injury No. 1 individually and also collectively sufficient to cause death in the ordinary course of nature and that the death was instantaneous. He has further deposed that probable time between death and post-mortem was about 24 hours.
He has further deposed that on the same day the Naudero Police also sent him P. W. Ali Asghar, son of Ghulam Rasool for examination, treatment, who he had examined and found following injuries:- ---(1) An abrasion 6" x ----- x skin deep at the posterior aspect of left mid forearm.
(2) Linear abrasion 1 ----- in length at the anterior aspect of left mid fore-arm."
He opined that the injuries were simple in nature and of about 24 hours old. He further opined that injury No. 1 was caused by hard blunt substance such as lathi or back side of hatchet, whereas injury No. 2 appeared to have been caused by a sharp pointed weapon such as knife or point of hatchet. He has stated in cross-examination that injuries Nos. 1 and 2 on the person of Ali Asghar could be, self suffered or the same could be caused by a friendly band.
(f-1) We may also refer to the testimony of P. W. 8 Roshan Ali,. Rrtushir for the various mashirnamas referred to hereinabove in para 2 (a). He has deposed that about 2 years and 8 months back he was made a mashir to the arrest of accused Faiz Muhammad, Ahmed, Ali Mardan and Manthar at their village and that Gullan was the other mashir. He has further deposed that police prepared such mashirnama of arrest and obtained his signature on Exh.
27. He has also deposed that accused Faiz Muhammad led them to the reed bushes and produced single barrel gun, which was secured and sealed by the I. O. He has further deposed that Faiz Mohammad also produced a licence of the gun which was also secured by the police. He goes on to state that accused Ahmed voluntarily led the police to the abandoned wah and produced a blood-stained hatchet from the reed bushes, which was secured and sealed by the police in their presence. Gullan was the other mashir. After that accused Manthar voluntarily led them to a place and produced blood-stained hatchet from reed bushes where it was concealed, it was also secured and a mashirnama was prepared as in respect of other. He goes on to state that accused Ali Mardan also voluntarily led them to the place, where he had concealed the blood-stained hatchet in the reed bushes which was also secured. In his cross-examination, he has stated that P. W. Ali Asghar is his brother and P.
W. 2 Mst. Hajan is his cousin. He has further stated that P. W. Abdul Majid is not related to him. He has further stated that he was standing on a road from their village Khan wah and so also Gulfan at 8 p. m. Where they bad no work, but were standing for their own. He has further stated that as soon as they reached the road the police arrived at 11 p. m. And that always used to stand on the road on every night and that they were standing at the bridge when the police arrived-there and that there was no other person except he and Gullan. He has further stated that no other persons were standing at that place except they (two) on the previous nights and that the police had taken both of them to the accused's village in order to assist them in the investigation which is situate about 7-8 miles from where the police had taken them. He has also stated that there are about 200 houses in the village of the accused, where many castes of people live. He has further stated that the police did not call any other person from the village. He goes onto state that they reached the village of the accused at about 1.30 a. m. In the morning and that all the 4 accused were in one house in which there were 3 rooms and that all 4 accused were sleeping in one room. He has further stated that all the accused were sitting and were chit chatting, when the S. H. O. Arrested them and all the 4 accused jointly agreed before the S. H. O. That they were ready to produce crime weapons used in the commission of the offence. He has also stated that S. H. O. Prepared mashirnama in the otak of Faiz Mohammad and obtained their signatures (mashirs) and that thereafter the S. H. O. Took the accused and them to the Naudero Police Station. He has further stated that all the articles were sealed at the otak of Faiz Mohammad. He has denied the suggestion that nothing was secured from the accused by the Police.
(g) The only witness whose statement is to be referred is Investigation Officer. P. W. 9 Ali Anwar. He has deposed that on 7th February, 1977 Ire was the Incharge A. S. I. At the Naudero P. S. On that day at 10-30 pan, complainant Himath came to the police station and lodged the F. I. R. Which he recorded Exh.
6. He has further stated that he along with the complainant and the police constables went to the wardat and that during the night he did not inspect the wardat and did not prepare mashirnamas but examined P. W. Mst. Hajan and Nisar Ahmed. He has further stated that the complainant produced the torch before him, which he secured. He goes on to state that he secured blood-stained earth from the wardat and also four 12 bores empties, which he sealed on the spot in presence of the mashirs and prepared mashirnamas. He has also deposed that cap and mufler of the deceased was also lying at the wardat and the same were secured by him under mashirnama Exh.
10. After that he prepared inquest reports in presence of same mashirs Exhs. 11 and 12. After that he sent dead bodies of both the deceased along--with the Police Constable Rab Rakhio to the Medical Officer Ratodero for post-mortem examination. He also prepared mashirnama of injuries on the person of Ali Asghar in presence of the same mashirs under Mashirnamas Exh.
13. He has further stated that on 8th February, 1977 he proceeded to Kotdiji and arrested accused Yaqoob, who was working as a police constable in presence of the same mashirs. He has further deposed that he tried to arrest the other accused but they were not available prior to going to Kotdiji. He has also deposed that on 9th February, 1977 he proceeded to arrest accused Faiz Muhammad, Ahmed, Manthar and Ali Mardan and that when he reached near a bridge near Khanwah, he met two mashers Roshan and Gullan. Both of them were taken by him in a Jeep, to the village of the accused, who also appeared before him near their houses. Upon arresting them be prepared mashirnama Exh. 27 in presence of the same mashirs. He bas further deposed that Faiz Mohammed volunteered to produce a licenced gun and its licence, which he was holding himself. He secured the gun and licence and sealed the same and prepared a mashirnama in respect thereof Exh.
28. He has also deposed that thereafter accused Ahmed, Ali Mardan, Manthar produced voluntarily blood-stained hatchets from the abandoned reed bushes, which he secured under Exhs. 29, 30 and 31. He has further deposed that on 10th February, 1977 he handed over the case papers to the S. H. O. Who sent the property to the Chemical Analyser and the Ballistic Expert, and also got recorded 164, Cr. P. C. Statement of P. Ws. Mst. Hajan, Nisar Ahmed and Ali Asghar and challaned the accused. He has also produced the Ballistic Expert and Chemical Analyser's reports Exhs. 34 and 35 respectively. In cross-examination, he has stated that complainant Himath Ali had not stated in the F. I. R. That accused Ali Mardan gave any injury to any of the deceased lout had stated that accused Ali Mardan was armed with hatchet. He has further stated that on 8th February, 1977 he bad gone to the village of the accused but they were not traceable. Thereupon, he had conducted search of the houses of accused but nothing incriminating was found therein. He has also stated that mashirs Abdul Majid and Jamaldin were mashirs of search of the houses when they were not traceable. He has further stated that on 8th February, 1977 at 9-30 a.m. He was at Kotdiji in order to arrest accused Yaqoob, whom he arrested at 10 p.m. In the night and thereafter, he returned to Naudero. He has also stated that distance of Kotdiji is about 80 miles. He has further stated that he remembered that he had taken the mashirs Roshan and Gullan at about 10 or 11 p.m. In the jeep and that the accused were arrested at about 1 O' Clock in the day. He goes on to state that as soon as he called the accused from out side all of them carne out from their houses, and that the rest of the 3 accused on his interrogation also agreed to produce weapons. He goes on to state that the hatchets were concealed at separate places but were near each other and each of the accused produced these articles separately before him. He has further stated that when accused Faiz Mohammad came out from his house he was armed with gun and on demand he also produced the licence. He goes on to state that as soon as the crime weapons were secured they were immediately sealed, mashirnamas were prepared and the signatures of mashirs were obtained. He has denied that the mashirnamas were prepared in the otak of Faiz Mohammad or that nothing was recovered from the accused. He further stated that he had verified and seen the roznamcha maintained at the Treasury Office God Kotdiji, district Khairpur and that he verified from the record that on 7th February, 1977 accused Mohammad Yaqoob is shown present at 9 p.m. To 12 mid night.
4. As pointed out herein above appellant/accused Yaqoob in order to prove alibi has examined one witness D. W. 1.
D. W. Muhammad Shahban has deposed that on 7th February, 1977 he was incharge of Line No. Of the Treasury Guard at the Sub-Treasury Kotdiji, District Khairpur, and that on the above date accused Yaqoob was present on the Roll Call, who was constable. He has further deposed that Yaqoob was on leave from Ist to 6th February 1977, but attended the roll call on 6th February, 1977 at 11 a. m. He has also stated that on 7th February, 1977 he took the roll call at 5 p. m. And assigned duty to Yaqoob from 9 p. m. To 12 p. m. On the above date. He has also stated that accused Muhammad Yaqoob was present before him at Kotdiji from 5 p. m. Till he took over the actual duty of guard at 9 p. m. On that day, and that the roll call which was taken at 5 p. m. On 7th February, 1977 was duly entered in the roznamcha maintained by him and actual duty of guarding of the treasury of that particular date was also entered in the roznamcha which he produced with entry No. 5 dated 7th February, 1977 as Exh.
50. He has further stated that he was examined by the Investigating Officer of the case and that Kotdiji is about 90 miles away from Naudero. In cross- examination, he has stated that he prepares roznamcha daily and that it was not a fact that according to law they have to roll call at 8 p. m. He has further stated that roll call time is 5 p. m. But they do not regularly call at 5 p. m. And they call at any other time as essential. He goes on to state that on 6th February, 1977 they had made the roll call at 6 p. m., whereas on 5th February, 1977 they had not made the roll call at 5 p. m. But they do not regularly call at 5 p. m. And they call at any other time as essential. He goes on to state that on 6th February, 1977 they had made the roll call at 6 p. m. Whereas on 5th February, 1977 they had not made the roll call at 5 p. m. But at 7 p. m. He has also stated that on 8th February, 1977 they had called the roll at 5 p. m. And so also on 9th February, 1977. He has also stated that Muhammad Yaqoob was present on 6th February, 1977 from 11 a. m., but he had not given any duty till night when he was assigned duty from 9 p. m. To 12 p. m.
5. (a) Mr. Hayat Junejo, learned counsel for the appellant has made following submissions :
(i) That since the alleged eyewitnesses had admittedly animosity with the appellants their testimony requires corroboration from independent piece of evidence, which is lacking in the instant case.
(ii) That the plea of alibi advanced by appellant Yaqoob was probable in the circumstances of the case, and, therefore, the same should have been accepted by the learned Additional Sessions Judge.
On the other hand Mr. Iman Bux, learned counsel for the State has candidly submitted that he does not support the conviction and sentences awarded to the 3 appellants, namely, Muhammad Yaqoob, Ahmed and Manthar but the case of appellant Faiz Muhammad is distinguishable and therefore, he supports the conviction against him.
(b) Reverting to the above first contention of Mr. Junejo that since the alleged eye witnesses have admittedly animosity with the appellants party, their evidence requires independent corroboration, which is lacking in the instant case, it may be observed that P. W. I Himath Ali, and P. W. 2 Mst. Hajan have admitted that they were on inimical terms with the appellant party for the last about 30-40 years, inasmuch as that cases and counter cases had been filed by the parties against each other and that the murders had also taken place in which either the complainant party or the appellants' party were accused or witnesses. P. W. Asghar Ali also stands on the same footing as P. W. 1 and 2.
In this view of the matter independent corroboration is needed to sustain the conviction against the present appellants. It may be pertinent to mention that P. W. 1 complainant Himath Ali in the F. I.
R. As well as in his deposition before the learned Additional Sessions Judge had mentioned the motive the party of the appellant that about 3 years before the incident deceased Atta Muhammad alongwith others were accused of murder of appellant Faiz Muhammad's brother Ishaque and they were acquitted. In the above case accused Ali Mardan was a witness for the prosecution. In addition to the above motive, the defence has also brought on record the following other previous cases between the parties namely:
(i) Appellant "No. 2 Faiz Muhammad filed a case under section 336 (i. e. Causing fire mischieviously) against P. W. 1 complainant Himath Ali prior to the present incident. The witnesses to the above case for appellant Faiz Muhammad were appellants Nos. 3 and 4.
(ii) Hakim brother of P. W. 2 Mst. Hajan was murdered prior to the incident, appellants Ahmed, Ali Mardan and Manthar were accused in that case, but they were acquitted after trial.
(iii) that there was fight in which appellant Faiz Muhammad, his brother Ishaque, Mst. Karamiat, mother of appellant Ali Mardan were injured and Mst. Lalan died on account of that incident. In the above case P. W. 2 Mst. Hajan, Hakim, and Piral were accused and appellant Faiz Muhammad and his brother Ishaque were the injured witnesses.
(iv) Hatim cousin of P. W. 2 Mst. Hajan and Karim Bux were witnesses, in which the complainant was Abdul Sattar whereas, Ali Mardan and other were accused.
In view of the above admitted long animosity between the parties as a rule of prudence this Court is obliged to look for independent corroborative piece of evidence. In this regard the prosecution has sought corroboration from P. W. Haji Muhammad Amin, who had allegedly come after hearing cries and gun shot reports from his house. His testimony cannot provide the requisite corroboration for the simple reason that he was husband of Mst. Nooral Sister of P. W. 1 complainant Himath Ali and therefore, he had also animosity with the appellant party.
The next niece of evidence of which corroboration is sought by the prosecution is the recoveries namely, 4 empties of 12 bores from the place of wardat, to which P. W. 3 Abdul Majid was one of the mashirs, therecovery of a licenced gun from appellant Faiz Muhammad, and the recoveries of blood-stained hatchets from appellants Ahmad and Manthar and acquitted accused Ali Mardan.
We may observe that the above recoveries alongwith the reports of the ballistic expert and the Chemical Analyser would have provided sufficient corroboration to sustain the convictions.
However, from the evidence on record, it is evident that the recoveries cannot be relied upon for the reason that the attending circumstances seen to suggest that the recoveries are doubtful. It may be pointed out that for the purpose of recoveries of blood-stained hatchets and gun and for the mashirnama of arrest etc. P. W. 8 Roshan Ali acted as one of mashirs. It may be mentioned that according to P. W. Roshan Ali there were about 200 houses in the village, where the accused were residing belonging to the people of different castes, but it is surprising to note that the Investigation Officer deemed it fit to take P. W. Roshan Ali and Gullan from a distance of about 8-9 miles from the appellants' village. According to evidence on record the distance between the complainant party's village and of appellants' village was about 8-9 miles. Furthermore, admittedly Roshan Ali P. W.
Was on inimical terms with the appellants' party in as much as P. W. Roshan Ali was brother of P, W.
Ali Asghar though he has denied this relationship in his deposition, but P. W. 2 Mst. Hajan has belied Roshan Ali's above denial. Their real uncle Piral was accused in the aforesaid case in which Mst.
Lalan on account of injuries died referred to hereinabove in para, 5 (b) (iii). The second mashir Gullan, who has not been examined is also related to the complainant party as well as to the appellants party. It has come on record that his son Manzoor was co-accused with deceased Atta Muhammad for murdering appellant Faiz Muhammad's brother Ishaqul as per admission of P: W. l the complainant Himath Ali. In this view of the matter the second mashir was also a person interested and hostile to the appellant. It seems that the prosecution has not examined above second mashir Gullan for the aforesaid reasons. Furthemore, the recoveries and the preparation of the mashirnamas in respect thereof do not inspire confidence. According to P. W. Roshan Ali, appellant Faiz Muhammad had produced licenced gun from the reed bushes, situated in the abandoned canal, whereas according to the Investigation Officer Anwar P. W. 9 Ali Anwar appellant Faiz Muhammad was with licenced gun when he came out from his house on his call at the time of his arrest and that recovery of the gun and the licence was made at the place of the arrest.
Similarly the recoveries of the blood-stained hatchets froth one place namely, from the reed bushes also seems to be improbable. It has come on record that there were canals situated between the appellants' village and the complainant's village. The appellants concerned had sufficient time either to throw the hatchets into the canal or to wash the same before they were arrested as there was lapse of time between the date of the incident and the arrest i. e. On 7th February, 1977 the incident had taken place, whereas the appellants except Yaqoob were arrested on 9th February, 1977. In addition to that the preparation of mashirnamas at the place of the recoveries is also doubtful, as according to P. W. Roshan Ali the mashirnamas of the recoveries were prepared in the Otak of Faiz Muhammad whereas according to P. W. 9 Ali Anwar the mashirnamas were prepared at the place of the recoveries.
The other mashir namely, P. W. 3 Abdul Majid who was a mashir as pointed out to the production of the torch Exh. 9 by the complainant P. W 1 and also to mashirnama of scene of offence from where 4 empties were allegedly recovered Exh. 10, inquests reports Exh. 11 and 12 and mashirnama of injuries of P. W. 3 Asghar Exh. 13 and also to the mashirnama of production of torch by P. W. 3 Asghar Exh.
14. P. W. 3 Abdul Majid has denied the factums that he was the brother of Muhammad Siddique. This statement of the above witness stands con--tradicted by P. W. 2 Mst. Hajan, who has deposed that Muhammad Siddique is brother of Abdul Majid. It has come on record that Muhammad Siddique was convicted for causing injury to appellant Faiz Muhammad's brother Muhammad Ishaq as per admission of P. W. 1 the complainant Himath Ali. Therefore, this witness bad also animosity with the appellants party. The recovery of the 4 empties of 12 bore from the place of wardat cannot be relied upon for the aforesaid reason. Furthermore, according to P. W. 9 Ali Anwar, I. O. Though he had reached at the place of wardat at about 8 in the evening but he did not inspect the place of wardat till the following morning, and, therefore, the place of wardat remained unattended for about 12 hours and hence the tampering of the place of wardat cannot be ruled out.
(c) Mr. Hayat Muhammad Junejo, learned counsel for the appellants has referred to the case Mumtaz Ahmed v. State (1974 P. Cr. L J 137) the case of Lalan and 2 others v. The State (1976 P Cr. L J 52) and the case of Rasool Bux and others v. The State (1980 SCMR 225) In support of his contention that if the mashirs to the recoveries were persons hostile to the accused or if they were brought from a distant place inspite of the fact that at the place of recovery some independent persons of the locality could have been made mashirs, the recoveries become doubtful.
(i) Referring to the case of Mumtaz Ahmed v. The State, it may be observed that a D. B. Of the Lahore High Court while dealing with the ques--tion of recoveries observed that 'the evidence in respect of the recoveries has been given besides the Inspector Ghulam Rasool (P. W. 16) and Haq Nawaz (P. W. 17). Apart from the fact that we have already declined to accept their testimony regarding the extra-judicial confession we have referred to material discrepancies in their statements. The fact remains that neither of them is a resident of the locality from where the recoveries were made or where the occurrence took place. The law requires that the recoveries should be witnessed by person belonging to that locality.
Section 103, Cr. P. C. Makes it mondatory upon the officer or the person about to make the search under the Chapter VII to call upon two or more respectable inhabitants of the locality in which the place to be searched, is situate to attend and witness the search. The section uses the words "shall call." If a person has been called from a place other than the locality, it may not make search invalid but if it is a populated locality grave doubt would be cast on the transaction because in such a case the inference would be that the police officer making the search was prompted by a desire to have such witness as would be easily persuaded to support any story which he might put forward.
(ii) With reference to the case of Lalan and 2 others v. State, it may be stated that in the above case a D. B. Of the erstwhile High Court of Sind and Baluchistan while dealing with the question of recoveries observed that "on a capital charge, where the ocular evidence requires corroboration, it would, in my humble opinion, not be safe to rely on the evidence of a mashir, who was closely related to the party of the complainants' accordingly this appellant also has to be given benefit of doubt".
(iii) Reverting to the case of Rasool Bux and others v. The State, it may be observed that the Supreme Court while dealing with the credibility of mashirs observed as follows :- "Additionally, Lai Muhammad admitted, but only in cross-examination that both he and the other mashirs Mahmood were relations of Allah Warayo. Therefore I am surprised that the learned Judges of the High Court were so impressed by a recovery which was witnessed apart from the Investigation Officer, only by the relations of the complainant. The learned Additional Advocate- General submitted that the police might not have been able to obtain independent witnesses as mashirs. Now no doubt it might sometimes be difficult for the police to obtain independent witnesses as mashirs but if so, it is for the prosecution to explain how it could not obtain an independent witness as a mashir, and, in the instant case, neither of the Investigation Officers have explained why they were not able to find at least one in--dependent person as a mashir. On the other hand a casual perusal of the evidence shows that there would have been no difficulty in finding at least one independent person to witness the recovery. I say this because Lal Muhammad admitted, but one again only in cross examination, that when he reached wardat with the other Investigation Officer, Ahmed Khan. "I found 50 persons at the wardat. Those were the people of the locality. Additionally as Lai Muhammad admitted that he lived in another village, to say the least, it was very strange that Ahmed Khan went out to his way to select as mashir a relation of the complainant who lived in a different village. But this means that the recoveries were in utter disregard of the provisions of section 103 of the Criminal Procedure Code. Unfortunately this was a circum--stance which escaped the attention of the learned Judges."
(d) From the above cited and discussed cases, it is evident that in case where locality is inhabited by the people of various castes and inspite of that, the Investigation Officer deems it fit to bring the mashirs to the recoveries from a distant place, or where he chooses to make close relations of the complainant party as mashirs who are on inimical terms with the accused, this will cast grave doubt as to the credibility o f the recoveries. It will therefore not be safe to rely upon such recoveries as a piece of corroborative evidence to the evidence which is already tainted with motive on account of enmity of the alleged eye-witnesses.
In the instant case as pointed hereinabove that the mashirs to the recoveries were persons hostile to the appellants and that there was no justification for the Investigation Officer to take P. W.
Roshan Ali and Gullan from the complainant party's village to the appellants' village which was situated about 8-10 miles and was inhabited by the persons belonging to the various castes, It may again be pointed out that it is highly improbable that P. W. Roshan Ali and Gullan would have been standing at the Canal bridge at 11-00 p. m. In the night during the month of February which is quite cold month. It was stated by Roshan that every night he and Gullan used to stand at the canal bridge without any work for no reason. This seem to be highly improbable.
6. With reference to the contention of Mr. Hayat Junejo that the appellant Yaqoob's plea of alibi should not have been rejected by the learned Additional Sessions Judge, as it was probable in the Circum--stances of the case, it may be observed that all the P. Ws. Have admitted the factum that appellant Yaqoob was posted as a Police Constable at Kotdiji, Khairpur at the relevant time. D. W. 1 Muhammad Shahban who was examined by the above appellant has supported the plea of alibi and has deposed that on 7th February, 1977 appellant Yaqoob was present at the place of duty from 5-00 p. m. Onwards and that took the roll call at 5.00 p. m. On the above date and assigned appellant Yaqoob duties from 9.00 p. m. To 12 p. m. This averment of D. W. Muhammad Shahban was supported by entry No. 5, dated 7th February, 1977 in the roznamcha maintained at the treasury guard office Exh.
5. This witness has further deposed that Kotdiji was about 90 miles from Naudero and, therefore. It was highly improbable for the above appellant to return to the place of duty on 7th February, 1977 after committing offence at about 7-30 p. m. Further more, he was arrested on 8th February, 1977 from the place of duty and no recovery was made from him. On the basis of the evidence on record, the plea of alibi of appellant Yaqoob could not have been said to be improbable. We cannot be unmindful of the distinction between the burden of proof on the prosecution and on an accused person in a criminal case. Whereas the former is to prove a case beyond reasonable doubt but the latter is to adduce evidence sufficient to make his plea probable in the circumstances of the case. In other words, an accused person is not required to prove the plea beyond reasonable doubt, but he is obliged to bring on record some evidence which may create reasonable doubt in his favour. We are therefore, inclined to hold that there was sufficient material on record, from which it could have been inferred by the learned Additional Sessions Judge that the plea of alibi raised by appellant Yaqoob was probable and not improbable. In this view of the matter appellant Yaqoob is even otherwise entitled to the benefit of the plea of alibi, and, therefore his conviction cannot be sustained on that account.
7. For the aforesaid reasons, we allow the appeal of all the-four appellants and order that they should be set free hence forth unless required in any other case or under any other law. The suo motu revision notice for enhancement of sentence is discharged.